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[2012] QCAT 329
Queensland Civil and Administrative Tribunal
2012-07-18
Original judgment source is linked above.
Pharmacy Board of Australia v Kent [2012] QCAT 329
24 April 2012; Final submissions received 28 May 2012
OCCUPATIONAL REGULATION - HEALTH PRACTITIONERS - PHARMACIST - DISCIPLINARY PROCEEDINGS - Where pharmacist dispensed anabolic steroids in quantities, combinations and frequency that exceeded normal dispensing practices - where the pharmacist did not keep adequate records of dispensing practices - where the inadequacy of records did not comply with the requirements of the Health (Drugs and Poisons)Regulation 1996 - where the pharmacist engaged in an inappropriate personal relationship with a customer - where the customer was drug dependent - where the pharmacist employed the customer in the dispensary of the pharmacist's pharmacy - where the parties broadly agree on sanction
Health Practitioners (Professional Standards) Act 1999, Schedule
Mr Andrew Luchich instructed by Meridian Lawyers for Mr Kent
[1] Mr Kent, a pharmacist, was the owner of a pharmacy in Gladstone. The Board has brought disciplinary proceedings against him in relation to three categories of conduct: inappropriate dispensing of anabolic steroids; non-compliance with regulatory requirements about pharmacy records; and an inappropriate personal relationship with a customer whom he also employed.
[2] The facts are not in dispute. However, the parties disagreed about what disciplinary findings the Tribunal should make about Mr Kent's conduct and what sanction it should impose.
[3] Over six months, from 1 August 2008 to 25 January 2009, Mr Kent dispensed the following restricted drugs to a single customer in breach of professional standards and codes:
24 Deca-Durabolin ampoules;
24 Primoteston Depot ampoules;
18 Sustanon ampoules; and
8 Reandron ampoules.
[4] The scripts were valid, but Mr Kent accepted that this did not relieve him of his independent professional responsibility to dispense the medications in accordance with his endorsement. The drugs in this case have the potential for misuse and abuse. It is well known in the profession that there is an illicit market in their trade. Although Mr Kent initially denied that he knew this, at the hearing, his counsel informed the Tribunal that Mr Kent conceded that he knew they had a value in that market, although he did not know precisely what the drugs traded for.
[5] In one transaction alone, Mr Kent dispensed two repeat authorisations of Reandron, totalling 8 ampoules, with a retail value of $1,200. He conceded it was not appropriate to do this in the absence of specific endorsement on the prescription.
[6] He accepted that he knew or ought to have known the quantity and combination of drugs dispensed were not necessary for any therapeutic purpose and, if used at the frequency with which they were dispensed, could cause harm to the customer.
[7] Mr Kent denied the quantities sought by the customer ought to have led him to suspect the drugs were not for personal use. He believed the customer, with whom he was familiar, who told him that he needed to fill multiple scripts because he was travelling.
[8] Other than the multiple scripts for Reandron dispensed the following January, Mr Kent dispensed the medications to the customer over 3 days in early August 2008.
[9] There is some basis for Mr Kent's belief that the customer needed to fill scripts because he was travelling. At the time scripts originating from one state could not always be filled interstate.
[10] Evidence led in proceedings relating to Mr Smith, another pharmacist who dispensed from the same pharmacy to the customer, supports Mr Kent's evidence that the customer told him he was travelling.
[11] Mr Smith said that Mr Kent told him in early August 2008 that the customer needed additional drugs dispensed because he was going away for a period of time. Although it seems Mr Smith, wrongly, took some comfort from that conversation, he bore an individual responsibility to dispense appropriately.
[12] Mr Smith's account of the conversation with Mr Kent is consistent with Mr Kent's evidence in these proceedings. However, Mr Kent failed to ask the questions he needed to ask in order to fulfil his professional and legal responsibilities. They include:
How long the customer was intending to travel;
Where the customer was going;
Whether there was any impediment to the scripts being filled at the destination;
Whether the drugs could be taken to that destination;
How the drugs will be stored (to ensure their safety and efficacy); and
What quantity of drugs was reasonably required for the period of travel?
[13] Mr Kent made none of these enquiries. Based on the usual dosage recorded in MIMS,[1] over a two day period he dispensed enough medication for about 12 months of personal use. He then dispensed more medication 5 days later. By not enquiring, Mr Kent abrogated his professional and legal responsibilities regarding dispensing restricted medicines open to misuse and abuse.
[14] A pharmacist's primary concern must be the health and wellbeing of the consumer and the community.[2] Pharmacists must promote judicious, appropriate, safe and effective use of medicine and be aware of the trends and patterns of use of commonly misused substances.[3]
[15] This requires pharmacists to exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or to supply unnecessary or excessive quantities of medicines with the potential for abuse or dependency.[4] Mr Kent failed to fulfil these professional responsibilities.
[16] The Tribunal finds that he engaged in unsatisfactory professional conduct[5] in the following respects:
His conduct fell below the standard that might reasonably be expected of him by the public and his professional peers;
His conduct demonstrated incompetence or lack of adequate knowledge, skill, judgment or care in the practise of his profession; and
He provided a person with health services of a kind that were excessive, unnecessary or not reasonably required for that person's wellbeing.
[17] Mr Kent admitted a number of inadequacies in relation to the pharmacy's practices in labelling medication and record keeping. Specifically:
The dispensing labels did not comply with the requirements of the Health (Drugs and Poisons) Regulation 1996, sections 85(3)(h), 198(3)(h) and 276(3(h);
The amendments to the pharmacy's controlled drug book did not comply with the requirements of section 87(5) of the Regulation; and
There were incorrect entries or omissions in the controlled drug book.
[18] Following the audit by Queensland Health, which detected these non-compliances, the errors in the controlled drug book were rectified quickly and Mr Kent implemented procedures to ensure the book was checked daily.
[19] In April 2010, the pharmacy secured accreditation by the Quality Care Pharmacy Program of the Pharmacy Guild of Australia. Mr Kent has, since, sold it to Mr Smith.
[20] Counsel for Mr Kent described these issues as involving an element of sloppy conduct while acknowledging it is a serious matter. The requirements for record keeping are not mere business records. They are intended to limit the risk of misuse and abuse of medications for non-therapeutic purposes. Inattention to these requirements is unsatisfactory professional conduct, falling below the standard that might reasonably be expected of Mr Kent.
[21] The final matter that has brought Mr Kent before the Tribunal is his relationship with a customer whom he later employed, both in the pharmacy and in a local radio station in which he held an interest. Initially the Board alleged the relationship was sexual, but it did not pursue that allegation. The matter proceeded at hearing on the basis that it was an inappropriate personal relationship.
[22] The customer was a patient under the Queensland Opioid Treatment Program because of her dependence on prescription medication. Under the program, a drug dependent person is provided with medications such as Methadone, Subutex and Suboxone. The objective of the program is to safely and legally manage the patient's dependence, with a view to them eventually achieving abstinence.
[23] The pharmacist provides a structured environment in which the patient may be dosed and is generally expected to:
develop a positive relationship with the patient;
monitor the patient's day to day level of intoxication;
dispense/supply the dose;
seek to ensure the dose has been appropriately ingested and not diverted;
encourage the patient to take the dose at approximately the same time each day; and
maintain contact with the prescriber regularly to report signs of intoxication, other drug use, non-attendance for dosing and any problems or crises that may present.[6]
[24] As such, the pharmacist plays a more active role in the delivery of health services than they usually do and accepts responsibility for at least some level of supervision of the patient. That brings with it a higher level of professional responsibility for the patient, which necessarily has implications for the nature of the relationship the pharmacist might properly have with the patient.
[25] Mr Kent accepts he maintained an inappropriate personal relationship with the patient between late 2009 and January 2010. She started under the Opioid Treatment Program in about October 2009. She was provided with Suboxone under the program. Mr Kent said he did not then know the nature of her addiction.
[26] After he was approached by the Commonwealth Rehabilitation Service, Mr Kent gave the patient a job at a local radio station in which he had a financial interest. The patient had a background in marketing, merchandising and sales promotion. She travelled with him to Brisbane to attend a conference of radio station owners and staff.
[27] Because he had lost his driver's licence, the patient drove him around from time to time. So did other pharmacy staff. He invited her to the pharmacy Christmas party, held at his home. Because he was short staffed over the Christmas/New year period, she worked for 4 days as a sales assistant at the pharmacy.
[28] The Board submitted the Tribunal should place particular weight upon Mr Kent's lack of judgment in employing a drug dependent person in a pharmacy that dispensed restricted drugs. Although she was employed for only 4 days, and was not in a dispensing role, Mr Kent conceded there was a risk she could have gained unauthorised access to medication.
[29] He accepts, in hindsight, the friendship with the patient demonstrated a lack of professional judgement and a significant degree of naivety. He says his motive was to assist the patient to get her life back on track.
[30] Mr Kent's friendship had the potential to cloud his judgment. It was inconsistent with his responsibilities as the dispensing pharmacist under the Opioid Treatment Program. He was aware of her particular vulnerability, given her addiction and his role as her dispensing pharmacist. Their friendship and her employment arose out of the professional relationship.
[31] That said, there is no evidence that Mr Kent exploited the patient. His concessions about their friendship saved the patient from the discomfort of giving evidence in these proceedings. The Tribunal takes that as an indication that Mr Kent acknowledges the patient's vulnerability and has a genuine concern for her welfare. It also accepts Mr Kent now has insight about why the friendship was unprofessional conduct. The Tribunal finds his conduct in this regard fell below the standard of conduct that might reasonably be expected of him by his professional peers and the public.
[32] Although the parties did not agree about sanction, in broad terms they agreed on the elements of the orders the Tribunal should make. Both submitted a suspension was in order, that conditions should be imposed on his registration regarding professional ethics training, mentoring and a statutory examination and that he should not reapply for his endorsement to dispense steroids for some period.
[33] The Tribunal is satisfied that orders of that nature are appropriate in this case. In substance, the difference between the parties relates to the relevant timeframes.
[34] The Board contends Mr Kent's registration should be suspended for 18 months, partially suspended after 12 months, subject to compliance with the registration conditions and no other disciplinary matters within a further 12 months. The Board submitted the suspension should be recorded for 2 years; which includes the period during which the unserved 6 month suspension might be activated. It argued Mr Kent should not reapply for his endorsement within 3 years.
[35] Counsel for Mr Kent submitted a 9 month suspension was adequate, that order suspended after 3 months and recorded for 12 months. He argued that Mr Kent should be able to reapply for his endorsement after 12 months.
[36] The purposes of disciplinary proceedings are protective, not punitive: to uphold professional standards, maintain public confidence in the profession and protect the public.
[37] The Tribunal was referred to other cases involving inappropriate dispensing of steroids or pseudoephedrine.[7] Since the hearing, the Tribunal has decided the case against Mr Smith and has had regard to the sanction imposed in that case as well.[8] It accepts the submission by Mr Kent's counsel that Mr Kent's conduct in that regard is no worse than the cases to which the Tribunal was referred. Had there been no other disciplinary offence, suspension in the order of 6 months, wholly or partially suspended was a likely outcome.
[38] As contended by the Board, the Tribunal must look at what sanction is appropriate considering the three different types of conduct alleged against Mr Kent. There is an appreciable difference between a practitioner whose conduct falls down in only one respect and one whose conduct is unprofessional in a number of respects. Mr Kent's standing as a professional is substantially challenged by the combination of these different types of unprofessional conduct: inappropriate dispensing; neglect of regulatory requirements; and professional boundary violation.
[39] Mr Kent has not faced prior disciplinary action in 50 years of practice. He presented to the Tribunal as a pharmacist who had distracted himself from his professional obligations, perhaps because his focus was on other commercial ventures, such as the radio station.
[40] These proceedings have already had an impact on Mr Kent, who has sold his pharmacy and, more recently, abandoned plans to open a different one. He is in semi-retirement and plans to work in the capacity of a locum pharmacist, a role that he has played in the past.
[41] Although the boundary violation adds a qualitatively different aspect to Mr Kent's unprofessional conduct, the Board has not proceeded with the allegation that the relationship was sexual. Although the patient was vulnerable, there is no evidence she was exploited. That has been a significant factor in the decision the Tribunal has made on sanction.
[42] The Tribunal considers the objectives of disciplinary proceedings will be achieved in this case if Mr Kent's registration is suspended for 12 months, that order to be suspended after 3 months, provided that he complies with the conditions imposed on his registration and is not subject to further disciplinary action within 12 months of the order.
[43] The conditions proposed by the Board suitably deal with the issues raised by Mr Kent's conduct. Given he surrendered his endorsement in May 2009, an order that Mr Kent is not entitled to reapply for the endorsement for a further 12 months provides adequate protection. By then, he will have undertaken the statutory examination which will test his understanding of the legal requirements of his endorsement.
[44] Given the Board has established its case, substantially, it is appropriate that Mr Kent bear the Board's costs of the proceedings.
[1] An online resource for medical and other health professionals about matters including prescription medicines (http://www.mims.com.au/).
[2] Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 2.
[3] Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 5.
[4] Pharmaceutical Society of Australia Code of Professional Conduct (endorsed by the National Council in March 1998) Principle 1 and Obligation 1.3.
[5] Health Practitioners (Professional Standards) Act 1999, Schedule definition 'unsatisfactory professional conduct'.
[7] Pharmacy Board of Australia v Brenton [2011] QCAT 302; Pharmacy Board of Australia v Donnelly [2011] QCAT 584; Pharmacy Board of Australia v Booy [2011] QCAT 522; Pharmacy Board of Australia v Heron [2011] QCAT 424.
[8] Pharmacy Board of Australia v Smith [2012] QCAT 186.
Pharmacy Board of Australia
Kent [2012] QCAT 329