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[2013] QCAT 41
Queensland Civil and Administrative Tribunal
2013-01-23
Original judgment source is linked above.
Pharmacy Board of Australia v Daddow [2013] QCAT 41
Judge Alexander Horneman-Wren SC, Deputy President
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONSALS - PHARMACUETICAL CHEMISTS - DISCIPLINARY PROCEEDINGS - where the registrant dispensed pseudoephedrine in an inappropriate manner - where the registrant was convicted of an offence under the Drugs Misuse Act 1986 - where the registrant admitted conduct - whether the registrant's conduct amounted to unsatisfactory professional conduct
Health (Drugs and Poisons) Regulation 1996, regs 24, 32, 277, 285A
Health Practitioners (Professional Standards) Act 1999, ss 124(1)(a), 124(1)(i), 126,2412(2)(g) Schedule
Pharmacists Board of Queensland v Lim [2001] QHPT 008
[1] The Pharmacy Board of Australia has referred a disciplinary proceeding against Mr Stephen Siew-Hing Daddow to the Tribunal pursuant to s 126 of the Health Practitioners (Professional Standards) Act 1999 ('the Act').
[2] Mr Daddow is a pharmacist who has dispensed large quantities of a drug prone to abuse, pseudoephedrine (PSE), to persons he knew or suspected to be drug runners, and for reasons other than a therapeutic need. Mr Daddow failed to keep proper records of his sales of products containing PSE as required by law.
[3] By the amended attachment (A) to the referral, the Board alleges two grounds upon which disciplinary action may be taken against Mr Daddow pursuant to s 124(1) of the Act. First, it is alleged that Mr Daddow was convicted of an indictable offence against the Drugs Misuse Act 1986.[1] Secondly, it is alleged that Mr Daddow had behaved in a way that constitutes unprofessional conduct.[2] The Board alleges that Mr Daddow's conduct satisfies the definition of unprofessional conduct because it is:
Professional conduct that is of a lesser standard than that which might reasonably be expected of Mr Daddow by the public or his professional peers; and/or
Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of Mr Daddow's profession; and/or
Infamous conduct in a professional respect; and/or
Misconduct in a professional respect; and/or
Conduct discreditable to Mr Daddow's profession; and/or
Fraudulent or dishonest behaviour in the practice of Mr Daddow's profession; and/or
Other improper or unethical conduct.[3]
[4] As to the first ground, on 1 September 2008, Mr Daddow was convicted in the Supreme Court of Queensland on his own guilty plea of one count of producing a dangerous drug, pseudoephedrine, in excess of 200g.[4] Mr Daddow was sentenced to three years inprisonment with immediate parole.
[5] The first ground for disciplinary action is, therefore, established.
[6] Mr Daddow admits that the second ground of disciplinary action is also established.[5]
[7] In its written submissions the Board proposed the following orders by way of sanction of Mr Daddow:
- Pursuant to s 240(1) of the Health Practitioners (Professional Standards) Act 1999 ('the Act'), the Tribunal finds that the grounds for disciplinary action against the Registrant are established and that the Registrant has engaged in unsatisfactory professional conduct.
- The Registrant be released from the undertakings he gave to the former Pharmacists Board of Queensland on 16 April 2007, effective from the date of the Tribunal's decision.
- Pursuant to s 241(2)(g) of the Act, the Registrant's registration be suspended for a period of two years.
- The period of suspension is to be wholly suspended for a period of two years after the Registrant has served 18 months.
- A record of the suspension must be made in the Board's register and remain after the suspension ends for a period of five years.
- The following conditions be imposed on the Registrant's registration:
(a) The Registrant is to complete a teritiary module in ethical decision making within 12 months of the decision of the Tribunal.
(b) After expiration of the period of suspension, the Registrant must work under the supervision of another registered pharmacist at all times for a period of two years.
(c) The Registrant must not own a pharmacy, either in his own right or in partnership, for a period of five years.
[8] Of those proposed orders, Mr Daddow opposes only orders 3 and 4.[6]
[9] Thus the parties are in agreement that it is appropriate that Mr Daddow's registration be suspended for a period of time.[7]
[10] The Tribunal agrees that a suspension of registration is an appropriate sanction in this case.
[11] The issues in contest between the parties which must be resolved by the Tribunal are:
What is the appropriate period of suspension;
Should any part of the suspension actually be served, or should it be wholly suspended?; and
If part, or all, of the suspension is to be suspended, what should be the operational period of that suspension?
[12] The resolution of those issues requires consideration of all the relevant circumstances including Mr Daddow's professional history; the requirements imposed upon pharmacists dispensing PSE by law and the standards of the profession; the circumstances of the offending conduct; and any matters in mitigation or aggravation of that offending conduct.
[13] Mr Daddow was first granted unconditional registration as a pharmacist on 24 November 1997. Before the events the subject of the present proceeding his conduct as a pharmacist had not been questioned and did not otherwise come to the attention of the Board. He has not previously been the subject of disciplinary proceedings.
[14] PSE is a dangerous drug and one known to be prone to abuse. It is the precursor in the manufacture of methylamphetamine. PSE is a Schedule 3, pharmacist only, medicine under the Standards for the Uniform Scheduling of Medicines and Posions.
[15] Under the Health (Drugs and Posions) Regulation 1996 ('the Regulations'), conditions are imposed upon a pharmacist who sells PSE. Particularly, regulation 277 of the Regulation provides:
(1) A pharmacist or a person who is approved to dispense a poison under a pharmacist's direction and personal supervision, (the seller) must not sell an S3 poison unless -
(a) for S3 pseudoephedrine -
(i) the seller is reasonably satisfied the purchaser has a therapeutic need for the S3 pseudoephedrine; and
(ii) if the seller does not know the identity of the purchaser - the purchaser gives the seller an acceptable form of identification; ...
[16] Regulation 285A of the Health (Drugs and Posions) Regulation 1996 relevantly provides:
- (1) A person who sells S3 pseudoephedrine to someone (the purchaser) by retail must, at the time of the sale, make a record (a pseudoephedrine sales record) of each of the following particulars for the sale-
- (a) The date of the sale;
- (b) The brand name and quantity of S3 pseudoephedrine sold;
- (c) The purchaser's name and address;
- (d) If the person asks the purchaser to give the person an acceptable form of identification -
(i) The type of document given; and
(ii) The unique number assigned to the document by the entity that issued the document ...
[17] Mr Daddow was the proprietor and pharmacist in charge of Kawungan Plaza Guardian Pharmacy at Hervey Bay from October 2005 to April 2007.
[18] On 10 January 2007, Queensland Health officers attended the pharmacy to obtain information in relation to the dispensing of drugs and poisons.
[19] On 12 March 2007, the delegate of the Chief Executive of Queensland Health acting under regulation 24 of the Regulation invited Mr Daddow to show cause why his endorsement to obtain, dispense, sell, possess or otherwise deal with scheduled drugs and poisons containing the active ingredient PSE should not be cancelled.
[20] Mr Daddow surrended his endorsements as a pharmacist pursuant to regulation 32 of the Regulation with effect from 25 April 2007.
[21] On 16 April 2007 Mr Daddow gave an undertaking to the then Pharmacists Board of Queensland that he would not practice pharmacy. The Registrant has not practiced pharmacy since that date.
[22] During the period of time relevant to the disciplinary charges, Mr Daddow sold approximately 1,430 to 2,000 packets of PSE, the significant majority of which were not entered into the pharmacy's dispensing software, to persons he knew to be or who he suspected of being drug runners and for reasons other than a therapeutic need. This contravened regulation 277 of the Regulation.
[23] The quantity of PSE sold was substantial. Of those sales, approximately 75%, that is approximately 1,072 to 1,500 units of the 1,430 to 2,000 units obtained from wholesalers, were to those persons either known or suspected to be drug runners.
[24] Mr Daddow's failures to keep records in accordance with regulation 285A of the Regulation were also substantial and extensive. On approximately 1,091 to 1,661 occasions between about January and September 2006 he sold products containing PSE without keeping the necessary records for a period of at least 2 years as required by that Regulation.
[25] He also made a further 339 sales of PSE which he recorded as legitimate sales in the pharmacy dispensory software which were, however, sales made to persons who he had come to know or suspect as being drug runners.
[26] As is now admitted by Mr Daddow, his conduct was not only illegal but unsatisfactory professional conduct. The Pharmaceutical Society of Australia Code of Professional Conduct requires, amongst other things, that the primary concern for a pharmacist must be the health and wellbeing of both clients and the community, and imposes an obligation upon a pharmacist to at all times act in a manner which promotes and safeguards the interests and welfare of clients and the community.[8] The code of professional conduct also obliges a pharmacist to exercise professional judgement to prevent the supply of unnecessary and/or excessive quantities of medicines or other products, particularly those which have a potential for abuse or dependency.[9]
[27] This is not a case in which a pharmacist has unwittingly facilitated the supply of PSE to drug runners. Mr Daddow, by his own admission, knew that his pharmacy was being targeted by drug runners. His case does, however, have some unusual features.
[28] In the Supreme Court when sentencing Mr Daddow it was accepted by the prosecution, and thus by the Court, that the drug runners were threatening or domineering and that Mr Daddow was intimidated by them. Mr Daddow's reaction to this was to provide PSE to some of those who had made threats and to use the supply in an attempt to befriend others who he thought would provide him with information about the drug runners' illegal activities. His sentencing proceeded on the basis that such reaction, although unreasonable, was a consequence of Mr Daddow being genuinely afraid and in great distress.
[29] These matters are accepted by the Board in this proceeding as they were by the prosecution in the criminal proceedings. The Tribunal must take those matters into consideration.
[30] Another unusual feature of the case was that Mr Daddow in fact brought his offending conduct to the attention to the Queensland Police Service, although informally. Initially he did this through off duty police officers who attended at his pharmacy and then later by way of a phone call to the Hervey Bay Police Station. He has made full and frank admissions about his conduct.
[31] It is submitted by Mr Dollar of counsel on behalf of Mr Daddow that, unlike in some other cases, particularly that of Phamacists Board of Queensland v Lim,[10] Mr Daddow was not attempting to profit from his illicit sales of PSE through making the sales at inflated prices. This is a matter which also stands to his credit. However, as submitted by Ms Nixon on behalf of the Board, the extent of the profit in Lim's case was quite small, some $750, and increased turnover through additional sales also leads to greater profits.
[32] Medical evidence establishes that at the time of his offending Mr Daddow was, at least, suffering from some disturbance of mood and anxiety and may also have been suffering from an adjustment disorder with despressed and anxious mood.[11]
[33] For the purposes of these proceedings, the Tribunal has been provided with further medical reports as to Mr Daddow's psychological functioning. In a more recent report dated 17 November 2011,[12] Dr T Mark Schramm, a psychiatrist who had earlier reported on Mr Daddow in March 2008, reports that Mr Daddow 'presents now without acute psychiatric disturbance and having recovered from that depressive and anxiety disorder.'[13]
[34] In a report dated 2 March 2012,[14] Dr Ian Lynagh, a consultant psychologist who had earlier reported on Mr Daddow in August 2008, expressed the following opinion:
In my view he is now adequately informed concerning handling any such threats in the future, and he is more aware, mature and better able to manage any future stress. In addition, personally he now exhibits enhanced self awareness and insight concerning lifestyle issues. As regards repeat offending, clearly the legal and professional sequelae have proved to be a lasting deterrent for any such future behaviour.[15]
[35] Whilst these reports attest to Mr Daddow's improved psychological functioning, and the unlikeliness of him engaging in similar conduct in the future, there are aspects of those reports which leave the Tribunal somewhat troubled as to the extent of Mr Daddow's insight, even now, into his earlier offending behaviour.
[36] Mr Daddow's level of insight was a matter of which particular mention was made by Fryberg J in sentencing Mr Daddow for the offence of producing PSE. His Honour said:
I am somewhat concerned at your lack of insight and I am still a little concerned that you might still lack that insight. You must realise that you cannot give in to criminals, nor can you buy their friendship, and you particularly cannot do that by breaking the law yourself and supplying illegal drugs to them.
[37] In his more recent report, Dr Schramm says:
In summary and in short, it seems to me that the mistakes your client had made (assuming that he had engaged police adequately and, for a minority of persons, kept them close to obtain further information to assist with the police), are now clearly understood as naive and in error.[16]
[38] Similarily, Dr Lynagh in his more recent report said:
Mr Daddow, in describing his approach to handling the circumstances with which he was presented in his pharmacy, said he viewed his initial response essentially as one based on the typical safety instructions for hold up:
He acknowledges now that essentially what he did wrong was to assume the police were investigating, acting on his informal comments to them and that his 'safety and security first' behaviour went on far too long - anxiety, fear, panic and as diagnosed by Dr Schramm, depression, are apt to impair judgement and lead to impulsive acts.[17]
[39] Those recent observations made by each of Dr Schramm and Dr Lynagh each based, as they are, on Mr Daddow's perceptions of his conduct at the time of his offending, leave some residual doubt as to whether he yet fully appreciates that his true error was in supplying, in an unlawful and completely unprofessional way, PSE to persons who he knew to be drug runners, rather than that error being some naïve mistake in the way in which he went about responding to the circumstances which faced him.
[40] On Mr Daddow's behalf it is submitted that the appropriate period of suspension is 12 months and that such period should be wholly suspended. That is, it is contended that Mr Daddow should not serve any actual period of suspension.
[41] In the written submissions filed on his behalf, it was conceded that, ordinarily, a 2 year suspension would be appropriate for the type of conduct engaged in by him.[18]
[42] However, in advocating for a 12 month suspension (wholly suspended), counsel for Mr Daddow stresses that at the time of the hearing it was then some 5 years and 7 months since Mr Daddow gave his undertaking to the then Pharmacists Board of Queensland that he would not practice pharmacy. The Tribunal considers that this significant passage of time is a factor of particular importance in this case. Whilst the Tribunal is not critical of the Board in respect of the progression of the disciplinary proceedings, it must be acknowledged that Mr Daddow's conduct was some considerable time in the past and might, in other circumstances, have been dealt with at an earlier time with the effect that any suspension of his registration would have expired at some earlier date. However, it is also noted, as submitted by the Board in response, that in a letter written on his behalf by his then solicitors dated 4 December 2008[19] it was stated that Mr Daddow accepted that returning to pharamcy prior to 1 September 2011 was not a viable option. Thus, it is submitted, any delay is to be viewed in the context that Mr Daddow would not, in any event, have returned to practice before that date.
[43] In the Tribunal's view, a period of suspension of 2 years would, in the ordinary course, be appropriate. However, given the delay in the matter being dealt with, it is considered that a period of suspension of 18 months is appropriate in this case.
[44] The Tribunal is of the view that some portion of that suspension should actually be served. It is considered that an actual suspension of 3 months is appropriate in all the circumstances. That period of suspension will commence from the day of hearing of the disciplinary proceedings, that is, 13 December 2012 and will conclude on 12 March 2013.
[45] The remaining period of 15 months of the suspension will be suspended. The operational period for that suspended portion of the suspension shall be 15 months. Again, but for the delay in this matter being dealt with, the operational period of the suspended suspension would have been greater.
[1] Health Practitioners (Professional Standards) Act 1999, s 124(1)(i).
[2] Health Practitioners (Professional Standards) Act 1999, s 124(1)(a).
[3] These allegations correspond with those matters included within paragraphs (a), (b), (c), (d), (e), (h) and (i) of the definition of 'unsatisfactory professional conduct' contained within the Schedule to the Health Practitioners (Professional Standards) Act 1999.
[4] Indictment 417 of 2008 dated 21 April 2008 (Document 2 of the Agreed Bundle of Documents); Verdict and Judgment Record (Document 7 of the Agreed Bundle of Documents); Transcript of proceedings R v Daddow, Fryberg J, 1 September 2008 (Document 6 of the Agreed Bundle of Documents).
[5] Submissions on sanction on behalf of the Registrant filed 12 December 2012 at [12].
[6] In the written submissions filed on behalf of Mr Daddow it was said, at paragraph [4], that Mr Daddow consented to each and every order sought by the Board with the exception only of order 3. It is clear from the submissions, however, that order 4 is also contested.
[7] Pursuant to Health Practitioners (Professional Standards) Act 1999, s 241(2)(g).
[8] Pharmaceutical Society of Australia Code of Professional Conduct, Principle 1, Obligation 1.1.
[9] Pharmaceutical Society of Australia Code of Professional Conduct, Principle 1, Obligation 1.3.
[11] See report of Dr T Mark Schramm, Psychiatrist, 11 March 2008, Document 27 of the Agreed Bundle at p 17. Dr Ian Lynagh also described Mr Daddow as 'a person who is prone to stress, to obsess, to be compulsively driven, to become emotional, to panic, to act impulsively and who is interpersonally naive and vulnerable': see Report dated 27 August 2008 (Document 29 of the Agreed Bundle of Documents) at p 11.
[12] Document 28 of the Agreed Bundle of Documents.
[14] Document 32 of the Agreed Bundle of Documents.
[16] Document 28 of the Agreed Bundle of Documents at p 12.
[17] Document 32 of the Agreed Bundle of Documents at p 11.
[18] Registrant's submissions on sanction, filed 12 December 2012, [93].
[19] Document 24 of the Agreed Bundle of Documents.
Pharmacy Board of Australia
Daddow [2013] QCAT 41