Has Mr Kinsey engaged in professional misconduct or unprofessional conduct?

[4] Queensland Health audited Mr Kinsey's pharmacy in September and October 2009, in the course of a state-wide audit of compliance with the requirements of the Health (Drugs and Poisons) Regulation 1996 for dispensing PSE.

[5] The audit revealed that, over a little more than 2 years, Mr Kinsey had not made and kept pharmacy records relating to the sales of all PSE dispensed during that period. Although he had kept some records of a small proportion of the sales, the records were incomplete and did not meet the requirements of the Regulation.

[6] Mr Kinsey says that he always ensured medications containing PSE were sold by and labelled under the supervision of a pharmacist. He says that he thought that was adequate.

[7] He claimed that he recorded the name and drivers licence details for customers with whom he was not familiar, usually because they were not residents of Blackall. In his affidavit, he said he did not sell PSE products when he suspected they were being used for non-therapeutic or illegal purposes.

[8] Because of the paucity of his records, it is not possible to independently verify Mr Kinsey's assertions about his practices. At the hearing he was asked to give an example of when he had refused to dispense PSE, because he suspected it was to be used for non-therapeutic or illegal purposes. He was unable to do so.

[9] Although Mr Kinsey said he knew his customers were not using PSE for non-therapeutic purposes, he could not explain how, in the absence of records, he could assess this.

[10] The Tribunal places little weight on Mr Kinsey's reassurances to the Tribunal about his practices. When the assertions he made in his affidavit were subjected to questioning by the Tribunal, Mr Kinsey was unable to give specific, detailed or satisfactory responses. His answers did not inspire confidence that he was ever called upon or did exercise his professional judgment about whether dispensing PSE was appropriate.

[11] That said, the amount of PSE involved is much less than the Tribunal has seen in cases involving other pharmacists. The quantity he dispensed seems to reflect the smaller trade of a rural pharmacy. There were no records for 1,232 units of PSE. There were limited, and inadequate records for a further 236 units of PSE that he dispensed.

[12] Because he did not keep proper records, Queensland Health was unable to ascertain whether amounts were dispensed to particular customers in excess of a level commensurate with therapeutic purposes and standards. Nevertheless, because of the relatively small quantity, the Board has not alleged the pharmacy was targeted by runners collecting PSE for the illegal manufacture of speed.

[13] The board referred this matter to the Tribunal because it believed (its lawyers say reasonably) that the practitioner behaved in a way that constitutes professional misconduct.[2] Had it believed the conduct was merely unsatisfactory, the matter could have been dealt with by a performance and professional standards panel.[3]

[14] Professional misconduct, relevantly, includes:

(a) Unprofessional conduct that is substantially below the standard reasonably expected of a practitioner of equivalent training or experience; and

(b) More than one instance of unprofessional conduct that, when considered together, amounts to conduct substantially below that standard.[4]

[15] The basis for the Board's belief that Mr Kinsey's conduct qualified as misconduct is twofold. Firstly, it argued the records were not mere business records but were an essential aspect of a system of regulation intended to reduce the notorious risk of PSE being diverted for manufacture of illicit drugs. Mr Kinsey's failure to properly inform himself about his legal obligations, the Board argued, fell substantially below the standard expected of him, given his 30 years experience as a pharmacist.

[16] Secondly, the Board argued there were multiple instances of unprofessional conduct, represented by each occasion on which he failed to keep the necessary records.

[17] The Board's decision to refer the matter to the Tribunal is not under review. The definitions under the Health Practitioner Regulation National Law (Queensland) differ from those that formerly applied to the discipline of pharmacists in Queensland. There has been little judicial consideration of the definitions.

[18] The Tribunal accepts that Mr Kinsey's conduct over the 2 year period should be viewed as a single instance, comprised by a pattern of inadequate record keeping. That does not minimise the importance of the records. These are not mere business records; they are a key aspect of the regulatory system to control illegal use of PSE.

[19] Nevertheless, although Mr Kinsey's passive approach to his education and his neglect of his responsibilities, legal and professional, is reprehensible, he did not deliberately flout the Regulation. In those circumstances, the Tribunal considers his conduct is unprofessional conduct, not professional misconduct.

[20] The Tribunal was provided with a schedule summarising a large number of cases involving similar conduct in Queensland and other states. Although these have been taken into account in making this decision, none are directly comparable because they were not confined to a failure to keep records.

[21] The Board proposed that the Tribunal would suspend Mr Kinsey's registration, but suspend that order subject to his compliance with certain conditions for 18 months. Given the Tribunal's disciplinary finding, that sanction would be excessive.

[22] Mr Kinsey will be reprimanded. That is not a trivial penalty. It involves a public denunciation of his conduct and will be placed on the public register.

[23] Mr Kinsey lost his endorsement to dispense products containing PSE for about 10 days. He now has a limited approval, because he is the only pharmacist for his community. The Tribunal will order that he may not apply to Queensland Health for an unrestricted endorsement for a further twelve months.

[24] The Tribunal's decision to reprimand Mr Kinsey, not suspend his registration, was influenced by his willingness to give undertakings about maintaining membership of professional associations, engaging in a mentoring program for 18 months, and increasing his continuing professional education, including by personal attendance at a professional event attended generally by his peers.

[25] The Tribunal sought Mr Kinsey's undertakings, rather than imposing the requirements by way of conditions on his registration, because of its concern about Mr Kinsey's attitude to his professional responsibilities. It considered this might assist Mr Kinsey to appreciate that his level of knowledge and performance is his sole responsibility and that he should give a higher priority to his continuing professional development than he had in the past.

[26] It is clear that Mr Kinsey is a valued member of the Blackall community. He produced three references that attest to that. It is worth noting, though, that Mr Kinsey has interests in a number of businesses in the town. Although his support of the local economy is creditable, other interests should not distract him from his professional responsibilities.

[27] Mr Kinsey sought to rely on his isolation to explain his lack of knowledge. That is a poor excuse. In an age of electronic communication, Blackall is not that isolated. The predecessor to the Board sent a circular about the Regulation to every pharmacy. Mr Kinsey concedes he would have received it but did not act on it. He had access to the internet and would have found a wealth of information about PSE regulation had he been interested to do so.

[28] On his own account, he is the sole pharmacist to service a community of at least 1,400 people, with the next pharmacy located 110 kilometres away. The fact that his community has no easy alternative to patronising his pharmacy increases, not lessens, his responsibility to ensure his practices comply with legal and professional requirements. His careless approach to his responsibilities in relation to PSE medications raises concerns about his professionalism in other respects.

[29] As an aside, the Tribunal notes with some concern that Mr Kinsey's pharmacy was accredited during the relevant period, yet this significant discrepancy in his regulatory compliance was not detected by any accreditation audit.

[30] The undertakings requested by the Tribunal are intended to ameliorate the Tribunal's concerns about Mr Kinsey's attitude to his professional education. They will be recorded on the public register.[5] If Mr Kinsey breaches his undertakings, that will constitute unprofessional conduct.[6]

[31] Mr Kinsey agreed he should pay the Board's costs of and incidental to these proceedings, save for the costs relating to the report of Mr Brett Simmonds, dated 29 March 2012. His counsel argued that cost was unnecessarily incurred by the Board, given Mr Kinsey conceded the facts alleged against him. Further Mr Simmonds addressed a matter not alleged against Mr Kinsey, ie whether the dispensing was inappropriate.

[32] There was some miscommunication with Mr Simmonds because of the way the allegations were framed against Mr Kinsey. The Board intended to allege, and to seek Mr Simmonds' view about the allegation, that Mr Kinsey's failure to record the details of PSE transactions was inappropriate. As a result, he addressed part of his report to a question not asked of him.

[33] However, the Tribunal was assisted by Mr Simmonds' report. The parties agreed that it should form part of the Agreed Bundle of Documents, an indication that it was conceded to be relevant. The report brought together information otherwise gathered by Queensland Health and placed it in the context of Mr Kinsey's professional obligations. Mr Simmonds also documented the Regulation changes and the information provided by the Board to practitioners about those changes. If Mr Kinsey has not already done so, he would be well served to carefully read Mr Simmonds' report and the documents to which it refers.

[34] The Tribunal will not excise the costs of the report from the order that Mr Kinsey meet the Board's costs of the proceedings.

[35] Mr Kinsey must provide signed undertakings to the Board in the form set out in the schedule to these reasons, and file a copy with the Tribunal within 10 days. Upon receipt of those undertakings, the Tribunal will issue orders as set out in the headnote to these reasons. If he does not do so, the matter will be relisted for a further hearing on sanction.

Mr Kinsey undertakes to the Pharmacy Board of Australia that:

1. He will join, if he is not already a member, and maintain membership of the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia for 12 months.
2. He will participate in a mentoring program for 18 months which includes the following elements:

1. The mentor must be another pharmacist of appropriate maturity and experience, preferably regionally based, approved by the Board; 2. He will meet with the mentor monthly;

1. Those meetings may occur by telephone provided that he and the mentor meet in person, preferably at the pharmacy, on at least 4 occasions;

1. The mentoring relationship will be directed to: 1. Professional practice processes; 2. Currency of knowledge and practice; 3. Clinical competence; and 4. Strategies for accessing support in a remote location and professional obligations as sole pharmacist in a locality. 2. He will authorise the mentor to provide a written report to the Board after 6 months and at the conclusion of the mentoring program confirming that he fully participated in the mentoring program in accordance with his undertakings.
2. He will undertake 50 CPE units in the next 12 months, including at least one activity involving personal attendance by Mr Kinsey at a professional event attended generally by his peers.
3. He will bear all costs associated with compliance with these undertakings, including the costs of the mentor.

[1] National Strategy to Prevent the Diversion of Precursor Chemicals into Illicit Drug Manufacture (National Precursor Strategy). See http://www.health.gov.au/internet/drugstrategy/publishing.nsf/Content/mcds-16may07-communique-attachment-3.

[2] Health Practitioner Regulation National Law (Queensland), s 193(1).

[3] Health Practitioner Regulation National Law (Queensland), s 182(1).

[4] Health Practitioner Regulation National Law (Queensland), s 5, definition of professional misconduct.

[5] Health Practitioner Regulation National Law (Queensland), s 225(k).

[6] Health Practitioner Regulation National Law (Queensland), s 5 definition of unprofessional conduct.