Health Ombudsman v DKJ [2020] QCAT 268

Z Vakeska, solicitor of Office of the Health Ombudsman

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

• [1] This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013, s 103(1)(a) and s 104. Under s 126 of that Act, I constitute the Tribunal. I am sitting with assessors, Ms Huxhagen, Ms Kensell and Mr Murdoch in accordance with the Act, s 126. Their function is to advise me in relation to questions of fact: s 127.
• [2] The respondent was, at the relevant time, a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (National Law). The applicant alleges that the respondent engaged in professional misconduct in that, while registered and employed as a pharmacist, she dishonestly obtained medication from her employer by the use of fabricated prescriptions, and took a quantity of medication from the stock of the pharmacy. This occurred between July 2017 and November 2017.

• [3] The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has not been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct. The parties have provided written submissions to the Tribunal. The hearing proceeded on the papers in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 32.
• [4] The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information before the Tribunal, may be summarised as follows. The respondent was born in 1991 and is now 29. She was first registered as a pharmacist in December 2013. She was, at the relevant time, employed as a pharmacist at a pharmacy in a regional area. While working, she was ordinarily the only pharmacist on duty.
• [5] Between 12 July and 24 August 2017 on 12 occasions she supplied herself with various medications, mostly sedatives, antidepressants, pain relievers and cold medications, ostensibly on the basis of prescriptions from a medical practitioner which had not been issued. Further, between 1 September and 26 October 2017, on seven separate days she obtained one or generally more lots of medications, up to 10 on one day, by purporting to dispense them to others, using the provider number of a medical practitioner, without valid prescriptions. Again, this was mostly of a similar nature in terms of medication.
• [6] She had also taken an unknown quantity of various medications, mostly benzodiazepines, from the stock of the pharmacy without prescriptions or other valid authorisation, concealing her actions by adjusting stock records. This occurred on days unknown, but prior to 2 November 2017. Prior to the disclosure of this conduct, the respondent had paid for all the medications obtained in this way. When challenged about this by her employer, she initially denied the conduct, but the next day made full admissions regarding this conduct. The respondent was summarily dismissed from her employment, and she reported the matter to AHPRA the next day.

• [9] I am conscious of the definition of professional misconduct in the National Law, s 5. The relevant part is paragraph (c), conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession. This case is an example of dishonesty in carrying out her responsibilities in the pharmacy over a period of four months, which was a significant breach of trust on her part. Although the existence of the impairment is relevant to the respondent's conduct, the applicant's case is based on dishonesty involved in the respondent's behaviour. The applicant also relies on the code of conduct for pharmacists issued by the Pharmacy Board of Australia. Section 1.2 states, in part, that practitioners:

...must be ethical and trustworthy...clients...believe that... practitioners...will display qualities such as integrity, truthfulness, dependability...

• [10] The applicant also relied on the failure of the respondent properly to manage her own health, and in this regard, failure to comply with s 9.2 of the code of conduct. This was based on the proposition that the relevant conduct was related to self-medication by the respondent, and the failure to place this situation in the hands of appropriate professionals. During the relevant period the respondent was at times consulting a general practitioner, a psychologist and a psychiatrist, but they had not prescribed the medications obtained by this conduct. The applicant submitted that the conduct alleged amounted to professional misconduct.

• [11] The applicant relied on three previous decisions of the Tribunal. In Health Ombudsman v DeCelis [2019] QCAT 140 the respondent, a pharmacist, obtained cocaine for his own use by ordering it from his employer's pharmacy without any legitimate justification, and altering records to cover his tracks. This occurred on a number of occasions over seven months, and stopped when the respondent disclosed his conduct, quit his job and sought treatment. He did not disclose to the Board when he was charged with offences, but did not renew his registration as a pharmacist so that he had not been registered for over three years, a factor the Tribunal considered important. A finding of professional misconduct was made, and the respondent was reprimanded. The Tribunal noted that there was no evidence of any current impairment and that the respondent was fit to practice.
• [12] In Pharmacy Board of Australia v Christie [2016] QCAT 291, a finding of professional misconduct was made when a pharmacist had on a number of occasions over several years obtained various controlled, restricted and addictive drugs, including from his employer by dishonest means, such as by creating fictitious transactions. He had a long-standing problem with the abuse of prescription and other drugs. That respondent had already been dealt with in a criminal court and had allowed his registration to lapse, and obtained employment in a different field. He was reprimanded, disqualified from applying for registration for a period of three years and ordered to pay the cost to the board fixed at $12,000. The applicant submitted that this was a more serious case than the present, which appears to be correct.
• [13] In Health Ombudsman v Macdonald [2016] QCAT 473, the respondent was a registered nurse who stole 11 boxes of a schedule 4 medication from her employer. This behaviour was said by the Tribunal to represent a significant breach of trust and an abuse of position, which necessarily undermined the confidence that the public must retain in the profession. A finding of professional misconduct was made, and the respondent's registration was suspended for six months. That was an isolated incident and the medication was obtained for the use of a relative.

[He] was dishonest over a sustained period. That calls into question his character. Good character and honesty bear directly upon professionalism. In assessing what disciplinary sanction should be imposed, the Tribunal must assess [his] fitness to practise at the time of the hearing, not at the time of the conduct. The evidence before the Tribunal suggests that his disability, as sustained and serious as it was, does not reflect his character now.

• [15] That involved dishonesty in a different form and there were strong indicia of rehabilitation. The respondent does not dispute the characterisation of her conduct as professional misconduct, and I find that the relevant conduct did amount to professional misconduct.

• [16] In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant, and are shown here by the respondent.
• [17] It is relevant in this case that the medication obtained had been paid for, and that the respondent has subsequently not worked in the profession, or worked only on a limited basis, for a period of about two and a half years in total. She has retrained and is proposing not to practise pharmacy full time in the future. She has cooperated with this proceeding and with the prior investigations. She has undertaken appropriate treatment which has resulted in a significant improvement in her mental health, such that she is not now suffering any impairment, and has not for over 18 months. The Tribunal also accepts that she was suffering an impairment at the relevant time, which is relevant to the imposition of any sanction.
• [18] The respondent has filed in the Tribunal a statement dated 24 October 2019. She said that after this conduct was disclosed, she stopped using benzodiazepines and relocated to a different state. She is now working full time in a different field and has formed a supportive relationship. There are good indications of rehabilitation. The applicant proposes that by way of sanction the respondent be reprimanded, but that no other sanction is required. That course is not opposed by the respondent.

• [19] The respondent has asked that the period during which the reprimand remains on the National Register be less than the default position under the National Law of five years. This is supported by reference to the proposition that the respondent was suffering an impairment during the relevant period, which is a relevant factor. In response, however, the applicant submitted that the Tribunal has no power to make such an order, and that it is a matter for the National Board to determine whether or not reference to a reprimand remains on the register. The applicant submitted that there was no statutory basis for any such limitation, and that appears to be correct.
• [20] The Health Ombudsman Act 2013, which confers the power to reprimand a respondent, does not make any such provision, and I have been unable to locate any provision in the National Law which gives the Tribunal power to limit the period during which the reprimand remains on the register. The respondent, perhaps not surprisingly, has not identified any such power. The AHPRA website referred to appears to be a statement of policy for a National Board rather than the current legislative regime. It may be that earlier legislation did confer such a power on the Tribunal, which would explain the wording of the statement. By contrast, the National Law in s 226(3) expressly confers on a National Board the power to remove information that a practitioner has been reprimanded from the register. That indicates that it is a matter for a National Board to decide, hence the application of a policy by AHPRA as to how that power will be exercised.
• [21] As a creature of statute, the Tribunal has only such power as is conferred expressly or by necessary implication by a statute or statutes. Unless a statutory basis for such a power appears, the Tribunal cannot make such an order. I have looked for, but not found, any such basis, nor have I seen in a recent decision of the Tribunal, in which a reprimand was imposed, any reference to such an order. I am not aware of any decisions specifically on point, but the applicant has referred to two decisions of the Tribunal where the removal of the reprimand from the register has been spoken of as a decision for a board to make: at ; at .

• [23] The respondent has applied for a non-publication order under s 66 of the QCAT Act. In support of that application the respondent has presented letters from a general practitioner, a psychiatrist and a psychologist. The general practitioner has known the respondent since 2018 and expressed the opinion that the disclosure of the relevant events in this matter would be detrimental to her mental health and wellbeing. The psychiatrist was seen for the purpose of the letter but expressed the opinion that the publication of the relevant events carried a significant risk of causing a relapse of her current well-controlled anxiety and depressive disorders.
• [24] The psychologist who has been treating the respondent since February 2017 also expressed the opinion that there was a real and realistic prospect of a relapse in her mental state if the details of this matter were published. The applicant does not oppose a non-publication order. The QCAT Act s 66(2) authorises a non-publication order if the Tribunal considers it necessary, having regard to five specific matters, one of which is:

(b) To avoid endangering the physical or mental health or safety of a person.

And another is:

(e) For any other reason in the interests of justice.

• [25] I appreciate that the starting point is that the Tribunal operates in public and the power to conduct all or part of a hearing in private should be strictly regulated; see Legal Services Commission v XBV [2018] QCAT 332 at [26], where the Honourable P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. In that case, there was evidence that the respondent had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder and there was a risk of suicide. A non-publication order was made under another Act as it concerned a legal practitioner. Reference was made to the decision of J v L & A Services Proprietary Limited (No.2) [1995] 2 Qd R 10, where the open court principle was discussed. Under that principle, as applied in courts, it was said at p 45 that:

Information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.

• [26] In the present case on the evidence the requirement of section 66(2)(b) is satisfied, and that provides the ground for a non-publication order. I am aware of cases where applications for non-publication orders have been refused. In Health Ombudsman v NLM [2019] QCAT 366, Sheridan DCJ made a non-publication order in a matter which involved an impairment of the practitioner, which was closely bound up with the relevant misconduct, although it was not an impairment matter where there are statutory provisions for confidentiality.
• [27] Her Honour referred to those provisions and said at [10] that they indicated that the legislature attaches importance to the need for privacy in matters relating to impairment because there are good social policy reasons which justify a restriction on openness and the administration of justice. Accordingly, it was held to be necessary in the interests of justice to make a non-publication order. The situation is much the same in this case. The board found an impairment about the relevant time which was related to the offending conduct. I consider that the reasoning in NLM applies and provides a further ground for a non-publication order.
• [28] The respondent identified the information to be covered by the order as her identity for that occasion where she was employed at the time and the names of the relevant parties involved in the proceeding. The applicant identified matters to be covered by the order, as including reports on the respondent's medical, psychiatric and psychological history, references to the traumatic events suffered in 2009 and the respondent having left an abusive relationship in 2016, and details of the identity of the GP and the patients whose names were used by the respondent to obtain medications. That all appears reasonable in the circumstances and appropriate, in view of the evidence.
• [29] Accordingly, the Tribunal makes the following orders:
  1. The Tribunal decides that in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.
  2. The Tribunal reprimands the respondent.
  3. The parties bear their own costs of this proceeding.
  4. Until further order, pursuant to of the , publication of:

(a) the contents of a document or other thing produced at the Tribunal;

(c) any order made or reasons given by the Tribunal, is prohibited to the extent that it would:

(ii) enable the name and location of the respondent's then employer to be identified, including the names of other employees;

(iii) be any medical or psychological report about the respondent;

(iv) reveal details of traumatic or unpleasant events earlier in the respondent's life;

(v) reveal the identity of the GP and the patients whose names were used by the respondent to obtain medications.

• [30] The Tribunal also recommends that the Pharmacy Board consider removing from the public register details of the reprimand of the respondent after a period of two years, bearing in mind the various matters set out in these reasons.