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[2012] QCAT 552
Queensland Civil and Administrative Tribunal
2012-10-31
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[1] Mr Fitzpatrick has been a registered pharmacist since February 1981. Since 1990 he has been the owner and manager of the Landsborough pharmacy. The conduct which is the subject of the referral was two fold, a failure of Mr Fitzpatrick to ensure that the sale of all units of pseudoephedrine ('PSE') were recorded and a separate dispensing error made to a customer.
[2] There was some confusion about which law the referral was made under.
[3] The referral application form refers to it being a referral under s 124 of the Health Practitioners (Professional Standards) Act 1999 (the 'Professional Standards Act'). The attachment to the application which set out the basis for the referral says that the referral is in fact made under the Health Practitioner Regulation National Law Act 2009 (the 'National Law') but then in paragraph 27 of the attachment the Board alleges that Mr Fitzpatrick has engaged in 'unsatisfactory professional conduct' which is a finding only available under the Professional Standards Act. In the Tribunal's decision of Medical Board of Australia v Grant[1] Judge Kingham determined that the effect of the transitional provisions of the two acts was that the National Law applied to a complaint or notification that the former Board had received but not started dealing with and the Professional Standards Act applied if the former Board had started but not completed dealing with the complaint or notification.
[4] This matter went before the Tribunal for a decision on the papers. Because of the confusion the parties were requested to verify under which law the referral was made.
[5] The Pharmacists Board of Queensland began investigating the dispensing error on 10 November 2009. On 24 March 2010 the Board resolved there was sufficient evidence to establish a disciplinary committee to hear the dispensing error matter.
[6] On 1 July 2010 ('the commencement date') the National Law came into effect and the Pharmacists Board of Queensland, as it was then known, became the Pharmacy Board of Australia, the current Board.
[7] On 7 December 2010 the Board received notice from Queensland Health about Mr Fitzpatrick's conduct in regards to PSE.
[8] In December 2011 the Board considered the outcome of Queensland Health's investigation and resolved to refer both matters to the Tribunal under the National Law. In order to refer the matters together the Board needed to rescind the former Board's decision on 24 March 2010 to refer the matter to the disciplinary committee.
[9] Due to an administrative oversight the dispensing error was never considered by the Disciplinary Committee and referred to the Tribunal. After the Tribunal requested submissions from the parties on the applicable law the error was discovered by the Board's solicitors. The dispensing error was then considered and referred by the Disciplinary Committee on 18 October 2012.
[10] The referral having not being properly made potentially raises issues.
[11] Under s 211 of the Professional Standards Act the Tribunal has jurisdiction to hear all disciplinary matters referred under s 126 of the Professional Standards Act. To properly make a referral under this section the Board must file a referral notice with the Tribunal. This was done on 9 January 2012 by the Board. This referral contained all the information required under s 126. The question is then did the Board have the authority to refer the complaint.
[12] There appears to be no provision which prevents the Board from dealing with a matter while the Committee has carriage of it nor is there a requirement that the Board have the Committee's authority before referring a proceeding under s 126.
[13] In any event no argument has been raised by the parties in relation to this issue and the Tribunal is willing to accept that the referral has now been properly made.
[14] The Board's initial submissions were that although the dispensing error was largely investigated before 1 July 2010 it was then held in abeyance until after the National Law had commenced. This does not accord with the Tribunal's previous decision regarding the meaning of the words 'dealt with' in the transitional provisions.
[15] In Medical Board of Australia v Grant[2] Judge Kingham stated that for the Board to show it was dealing with a matter before the commencement date the provisions suggest that it would have to be demonstrated the Board was actively investigating or considering a complaint.
[16] In Pharmacy Board of Australia v Chung[3] the Tribunal found that deciding to hold the matter in abeyance was an active step taken by the Board and therefore the Board had dealt with the matter.
[17] Mr Fitzpatrick's solicitor submitted that the Professional Standards Act should be applied to the dispensing error and the National Law applied to the failure to adequately record the sales of PSE products.
[18] Following these submissions the Board indicated that it agreed with the submissions put forward by Mr Fitzpatrick's solicitors. The Tribunal also agrees that this is the correct application of the law.
[19] The Board has acknowledged that the dispensing error was largely investigated before the commencement date of the National Law, therefore the Professional Standards Act applies.
[20] The Board was notified of the PSE matter, and conducted investigations, after the commencement date. The National Law applies to this conduct.
[21] The parties had agreed that the conduct of Mr Fitzpatrick amounted to unprofessional conduct and put forward a joint submission on sanction.
[22] Since the further submissions on the applicable law both parties have had to reconsider their position.
[23] The Board submits that the dispensing error amounts to unsatisfactory professional conduct under the Professional Standards Act and the conduct in respect of the recording of PSE sales amounts to professional misconduct under the National Law.
[24] The Tribunal must consider each matter under the respective Act, having regards to the respective standards in each Act.
[25] The parties have agreed on the relevant facts.
[26] The referral concerns two allegations -
Mr Fitzpatrick's failure to record the sale of PSE products; and
A dispensing error made by Mr Fitzpatrick.
[27] In the mid 2000s the health regulators developed a national strategy to deal with the problem of illicit sales of PSE. PSE is the principal precursor chemical in the manufacturer of methamphetamine. As part of this strategy PSE was reclassified in 2006 as a schedule 3, pharmacist only poison.
[28] The effect is that pharmacists:
- Can only sell PSE products once they are satisfied:
The purchaser has a therapeutic need for the product; and
They have knowledge or proof of the purchaser's identity; and
- Must, at the time of sale, record details of the sale, including:
The quantity of product;
The name and address of the purchaser; and
Details of any identification provided upon the request of the pharmacist.[4]
[29] It is accepted as submitted by the Board that the rescheduling carried with it the import that pharmacists are entrusted by the community to serve as the 'gate keeper' of the distribution of PSE. The community relies on the profession to exercise its independent judgement to avoid the diversion of PSE to criminal communities.
[30] An audit was conducted by Queensland Health of Mr Fitzpatrick's pharmacy in October 2009. It was found that during the audit period (1 August 2008 to 30 September 2009) 872 units of PSE had been obtained from wholesalers and of this, 377 units of PSE had been sold to the public without records of the sales being made. That represented about 45.6% of the pharmacy's PSE products.
[31] Mr Fitzpatrick admits that he knew or ought to have known that PSE had been rescheduled, of the dispensing requirements associated with the rescheduling and that he was not diligent in recording sales.
[32] Mr Fitzpatrick submitted, by way of explanation, that his major clientele for PSE products was known to him. He submitted that approximately 78% of his clientele were locals and repeat customers and he would record details of any customers unknown to him or who he thought were suspicious. He has not provided any affidavit evidence in support of this. Mr Fitzpatrick accepts that this is not an excuse for this failure to record all sales
[33] It is submitted that in July 2009 a customer presented a script for Naproxen which he had been given to treat a case of gout.
[34] He told Mr Fitzpatrick he was travelling and would like enough medication for his trip.
[35] Mr Fitzpatrick said he could dispense two bottles of Naproxen if the customer endorsed a repeated prescription noting that he needed an immediate supply because he was travelling.
[36] Mr Fitzpatrick dispensed two bottles of Methyldopa (blood pressure medication) to the customer instead of Naproxen. The bottles were incorrectly labelled Naproxen.
[37] The customer suffered an attack of gout whilst on holiday and took the medication. The medication did not help the gout and the pain increased despite him taking the medication for several days and increasing the dosage.
[38] On admission to hospital he was diagnosed with gout. The doctor at the hospital discovered the error in the medication.
[39] The attack was severe and his left leg and muscles did not recover for some twelve months.
[40] Mr Fitzpatrick agrees that in failing to adequately verify the medication he acted contrary to the Pharmaceutical Dispensing Guidelines.[5]
[41] Mr Fitzpatrick was informed of the error by the customer's general practitioner. After the dispensing error was brought to his attention he did not complete an incident report or make contact with the customer. This is contrary to Pharmacy Board Guidelines.[6]
[42] Mr Fitzpatrick did not contact the customer to personally apologise for the error.
[43] Mr Fitzpatrick says that the error was 'inadvertent and unintentional'. His explanation is that the bottle of Methyldopa was placed in the dispensing shelves instead of Naproxen and the bottles are similar in size and have a similar bottle top colour.
[44] He accepts that the error should have been detected during the process in checking the medication before supply.
[45] In the referral the Board alleged that Mr Fitzpatrick's failure to record PSE sales amounted to professional misconduct. After negotiations between the parties the Board no longer sought a finding of misconduct but rather a finding that Mr Fitzpatrick engaged in unprofessional conduct.
[47] Mr Fitzpatrick was aware of the reasons behind the rescheduling of PSE and that it is imperative that pharmacists adhere to their obligations as 'gatekeeper' in the distribution of PSE to avoid diversion of the medication to the criminal community.
[48] The Tribunal finds that Mr Fitzpatrick's conduct in regards to the non-recording of sales of PSE amounted to unprofessional conduct under the National Law on the following grounds:
It was professional conduct of a lesser standard than that which might reasonably be expected of Mr Fitzpatrick by the public and his professional peers.[8]
[49] As to the dispensing error, the Board, in its initial referral, alleged this conduct amounted to professional misconduct under the National Law. Again following discussions between the parties the Board sought a finding of unprofessional conduct under the National Law.
[50] As discussed earlier it has been submitted by the parties, and the Tribunal has agreed that the law that should apply to the dispensing error is the Professional Standards Act. Subsequently the Board has amended the referral to allege that the dispensing error amounted to unsatisfactory professional conduct under the Professional Standards Act on the following grounds:
Professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant's professional peers; and/or
Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practise of the registrant's profession; and/or
Providing a person with health services that are excessive, unnecessary or not reasonably required for the person's wellbeing.
[51] Although the agreement reached between the parties was that the Board would only seek a finding of unprofessional conduct under the National Law, it may still stand as there are similar grounds for a finding of unsatisfactory professional conduct under the Professional Standards Act. Both include -
'Professional conduct that is of a lesser standard than that which might reasonably be expected of the [registrant/health practitioner] by the public and the [registrant's/practitioner's] professional peers.'[9]
[52] Mr Fitzpatrick has admitted that his conduct in regards to the dispensing error was of a lesser standard than that which might reasonably be expected of him by the public and his professional peers.
[53] It is accepted that errors in dispensing medication can be very dangerous to the public as demonstrated by the incident which occurred to the customer in this instance. It was fortunate that he did not have damage from taking blood pressure medication when it was not required.
[54] The conduct was exacerbated by Mr Fitzpatrick not making any attempt to apologise to the customer after being advised of the error.
[55] The Tribunal finds that Mr Fitzpatrick's conduct in regards to the dispensing error amounted to unsatisfactory professional conduct under the Professional Standards Act on the following grounds:
It was professional conduct of a lesser standard than that which might reasonably be expected of Mr Fitzpatrick by the public and his professional peers; and
It was professional conduct that demonstrated incompetence, or lack of adequate knowledge, skill, judgement or care, in the practise of the profession.[10]
[56] Mr Fitzpatrick has accepted that the sanction proposed by the Board is appropriate.
[57] The sanction involves a suspension of his registration for a period of three months to be wholly suspended for twelve months and the imposition of conditions requiring Mr Fitzpatrick to complete an educational course in appropriate dispensing.
[58] The Board notes that they are satisfied Mr Fitzpatrick has demonstrated insight regarding his conduct in that he made early admissions and has cooperated fully with the Board. He has employed another pharmacist to assist with the dispensing workload and the operation of the pharmacy and he has reviewed all protocols with regard to dispensing with his staff.
[59] These mitigating factors go in Mr Fitzpatrick's favour. Aggravating factors, however, include that as co-owner and manager of the pharmacy he had responsibility to ensure the pharmacy had a system in place to enable compliance with regulation, he was also an experienced pharmacist and in relation to the dispensing error, the customer suffered an adverse outcome for which Mr Fitzpatrick failed to apologise.
[60] The Tribunal is required to approach each case afresh and consider the particular circumstances of the case before it. However, in order to achieve its requirement to promote consistency of decision making it is necessary to take into account decisions made in comparable matters when determining what the appropriate and proper sanction is.[11]
[61] The Tribunal has recently heard and determined a number of disciplinary referrals concerning the sale of PSE which have arisen from the audits conducted by the health department.
[62] Pharmacy Board of Australia v Kinsey is one such matter.[12] The case involved a failure to keep records at all for 1,232 units of PSE and inadequate records for another 236 units. Mr Fitzpatrick has failed to keep records of 377 units of PSE over a 1 year period.
[63] Mr Kinsey was reprimanded and required to engage in a mentoring process and undertake further continuing education. The Tribunal did have some concerns in that case about the pharmacist's insight into his educational requirements. The Tribunal does not have the concern with respect to Mr Fitzpatrick's insight, there is however an additional ground for disciplinary action against Mr Fitzpatrick - the dispensing error.
[64] In another recent case of Pharmacy Board of Australia v Chung[13] there was no record for approximately 82% of the 1,564 units of PSE obtained from wholesalers. He had also engaged in separate conduct which amounted to another breach of the regulation. A reprimand, a mentoring program and further continuing education was found to be the appropriate sanction.
[65] Mr Fitzpatrick in this case agrees that the sanction proposed by the Board is appropriate. He points out that the amount of PSE dispensed without appropriate records was less than in Kinsey and arguably having a regard to that decision, a reprimand as appose to a suspended suspension may be appropriate, but he does not contend that.
[66] In this case the dispensing error distinguishes it from Kinsey.
[67] The Tribunal finds that the sanction proposed by the Board is appropriate and will make orders accordingly.
[5] Pharmaceutical Society of Australia Dispensing Practice Guidelines and Pharmacist Board of Queensland's Guide to Good Dispensing.
[6] Pharmacy Board of Queensland Guidelines on 'Dealing with complaints by clients'.
[8] Health Practitioner Regulation National Law Act 2009, Schedule, s 5, definition of 'unprofessional conduct'.
[9] Health Practitioner Regulation National Law Act 2009, Schedule, s 5, definition of 'unprofessional conduct; Health Practitioner (Professional Standards) Act 1999, Schedule, see definition of 'unsatisfactory professional conduct'.
[10] Health Practitioner (Professional Standards) Act 1999, Schedule, see definition of 'unsatisfactory professional conduct'.
Pharmacy Board of Australia
Fitzpatrick [2012] QCAT 552
Medical Board of Australia v Grant [2012] QCAT 285
Pharmacy Board of Australia v Kinsey [2012] QCAT 359
Pharmacy Board of Australia v Chung [2012] QCAT 483