PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - PHARMACEUTICAL CHEMISTS - DISCIPLINARY PROCEEDINGS - MISCONDUCT IN PROFESSIONAL RESPECT - where respondent owned a pharmacy - where there was a significant increase in the volume of pseudoephedrine being ordered by the pharmacy - where respondent admitted he ought to have known the pharmacy was being targeted by drug runners - whether the respondent's conduct amounts to professional misconduct

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - PHARMACEUTICAL CHEMISTS - DISCIPLINARY PROCEEDINGS - MISCONDUCT IN PROFESSIONAL RESPECT - where the applicant seeks that the respondent be suspended - where the applicant seeks there be a period of actual suspension and the suspension be suspended for the remainder - whether the Tribunal can suspend a suspension pursuant to the Health Practitioner Regulation National Law (Queensland)

Health Practitioner Regulation National Law (Queensland), s 125, s 125(2), s 196(1)(d), s 196(2)(a), s 196(2)(d), s 196(3), s 225(k)

Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 124(1)(a), s 241(2)(g), s 247(1), s 247(2), s 247(3), s 247(4), s 249, s 250, s 250(3), s 250(5)(b)(i), s 250(5)(b)(ii)

Health (Drugs and Poisons) Regulation 1996 (Qld)

Pharmacists Act 1974 (Vic)

David Loewy and Sandra Loewy v Pharmacy Board of Victoria [1992] VSC 630 (7 December 1992)

Pharmacy Board of Australia v Booy [2011] QCAT 522

Pharmacy Board of Australia v Daddow [2013] QCAT 41

Pharmacy Board of Australia v Donnelly [2011] QCAT 584

Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552

Pharmacy Board of Australia v Heron [2011] QCAT 424

Pharmacy Board of Australia v Huynh [2013] QCAT 42

Pharmacy Board of Australia v Kent [2012] QCAT 329

Pharmacy Board of Australia v Naghdi [2012] QCAT 675

Pharmacy Board of Australia v Smith [2012] QCAT 186

[1] Mr Tavakol is a pharmacist. He was, and remains, the owner of the Terry White Chemists Wynnum Plaza Pharmacy.

[2] These proceedings relate to the sale of pseudoephedrine ('PSE') products from the pharmacy during the period between June 2009 and July 2010. The Pharmacy Board of Australia alleges that during that period Mr Tavakol engaged in conduct which constitutes professional misconduct under the Health Practitioner Regulation National Law (Queensland) ('National Law').

[3] Between 23 June 2010 and 9 July 2010, Queensland Health officers covertly purchased 11 packets of products containing PSE from the pharmacy. The pharmacists on duty at the time of those sales did not engage in any discussions with the Queensland Health officers in order to ascertain whether those persons had any therapeutic need for PSE, and did not counsel them in the use of the products. However, it is important to note that Mr Tavakol was not the pharmacist engaged in any of those transactions.

[4] In fact, during the relevant period, Mr Tavakol worked only infrequently in the pharmacy. He engaged another pharmacist as the manager of the pharmacy, Ms Sara Naghdi. Ms Naghdi was Mr Tavakol's wife at the relevant time. This relationship has considerable significance in this matter. Mr Tavakol also employed one Phillip Hung as a pharmacist at the pharmacy. Each of Ms Naghdi and Mr Hung have been subject to separate disciplinary action by the Board.

[5] Ordinarily, Mr Tavakol would work only 1 day per week in the pharmacy. This was reduced further when he suffered a broken foot. The precise period during which, and the extent to which, he was indisposed by this injury is somewhat unclear. In a response filed on 13 June 2012, it was stated that Mr Tavakol,

did not work in the pharmacy at all for a period during January, February and March 2010 and a little in April 2010 as I had broken my foot badly in 2 places and was not able to walk about or stand. I returned to normal walking working capacity on 23 May 2010.

[6] In submissions filed on 22 March 2013, Mr Tavakol says that this period of absence commenced on 4 December 2009. He says that the solicitor who was previously acting for him in this matter "seems to have slightly mistakenly given you slightly different dates". However, the statements made in the response were made in the first person. More importantly, they were signed by Mr Tavakol, and stated by him to be true.

[7] On 9 July 2010 an inspector from Queensland Health attended the pharmacy for the purpose of assessing the pharmacy's compliance, and that of each of the pharmacists, with the Health (Drugs and Poisons) Regulation 1996 (Qld) ('the Regulation') and other obligations relating to the sale of products containing PSE.

[8] The period examined by the inspector was 1 January 2008 to 31 March 2010. It was found that during that period 11,799 units of PSE were dispensed from the pharmacy. It is apparent, though, that there was a marked increase in the volume of sales of products containing PSE in the period from June 2009 onwards. For that reason, the Board in its submissions to the Tribunal limited its allegations concerning the conduct of Mr Tavakol to the period from June 2009.

[9] Importantly, Mr Tavakol admits that he ought to have known from June 2009 that there was a significant increase in the volume of PSE ordered by the pharmacy each month which did not reflect seasonal trends.[1] Furthermore, in giving evidence to the Tribunal, Mr Tavakol conceded that he should have known that the pharmacy was being targeted by drug runners.

[10] Mr Tavakol also admits that the quantities of PSE obtained by the pharmacy exceeded what the pharmacy was required to stock on a "just in time" basis. Pharmacists are required to stock PSE on a just in time basis so as to limit the stock held to that required for 1 day's trading.[2] In partial explanation of this, Mr Tavakol stated that at the time discounts were being offered by wholesalers of which he took advantage.

[11] The report into the dispensing by the pharmacy reveals that there were a number of recurring sales to customers within minutes. Mr Tavakol said that it was very difficult to be aware of such matters in a busy pharmacy. He stated that as the owner of the pharmacy he placed reliance upon the dispensing pharmacists to check the dispensing history for each patient which was available on the pharmacy's computer. However, he conceded in light of a recognised increase in the sale of PSE products he would have been able to obtain a report from the pharmacy computer which would have identified the sales history of particular products, including when and to whom they had been dispensed. In light of his acceptance that he should have been aware that the pharmacy was being targeted by drug runners, this would seem to have been a simple and easily undertaken analysis.

[12] There was some evidence of dispensing pharmacists having made enquiries of prescribing medical practitioners in respect of large scale dispensing of PSE on prescription. Mr Tavakol says that he had instructed the pharmacists to make such enquiries. He says that he may have done so himself on one occasion.

[13] There is also some evidence of enquiries having been made of patients as to why they required large quantities of PSE to be supplied at one time. Reasons were offered by the patients. For example, on one occasion, one patient explained that he required two months supply to be dispensed on a single occasion because he would be travelling to a remote area.

[14] Merely questioning a patient about the need for large supply is unlikely to detect and prevent diversion of the PSE for the manufacture of amphetamines. If a pharmacy is being targeted by drug runners, as Mr Tavakol accepts that he ought to have known his was, one would expect that those involved in procuring the PSE would be prepared to respond to such questions with explanations which might appear plausible. Asking questions of the patient in such circumstances may amount to no more than the pharmacist seeking to be absolved from the responsibility of dispensing by the patient whose explanation for obtaining the drug in such quantities may be dishonest at worst or, at least, ill advisable.

[15] In a statement in response, Mr Tavakol says that he now realizes and fully appreciates that PSE runners know what to say and how to act when engaged in investigative discussions with a pharmacist. That realisation, of course, does not address the circumstances, as occurred with the covert purchasers by Queensland Health, where the customers were not engaged in investigative discussions at all.

[16] The pharmacy participated in project STOP. Project STOP is an electronic online database which assists pharmacies in establishing therapeutic need for PSE upon a request for product being made by a purchaser. Amongst other information available on project STOP is the fact that a particular person has been denied sales of PSE by other pharmacies.

[17] Project STOP also permits a report to be prepared which ranks a particular pharmacy's sales of PSE against those of others in the State and nationally. This "rank by pharmacy" report ranked the pharmacy as the number 1 seller of PSE on a state and national basis. Mr Tavakol does not dispute that fact. However, he says that this report was not available to him as the operator of a pharmacy. Rather, he understands that it is available only to the administrative authorities. The first time he saw such a report was when it was provided to him by Queensland Health in September 2010 at the time it cancelled his endorsement to deal with drugs containing PSE.

[18] Furthermore, Mr Tavakol contests the accuracy of the rank by the pharmacy report because participation in project STOP was not compulsory in Queensland until 1 July 2010; and later still in South Australia, Western Australia and the Northern Territory. It remained voluntary in NSW and Victoria.

[19] As to his own participation in Project STOP, Mr Tavakol says that when it was first initiated in Queensland he attended a lecture at which the president of the Pharmacy Guild and a senior police officer spoke. From that lecture he understood that Project STOP was being, and would be in the future, monitored by police and that pharmacies would be contacted by police if it was believed that the pharmacy was selling PSE to "the wrong people", or people suspected of being PSE runners. He claims that this reassured him because he previously had a practice of notifying the police by fax if a customer of the pharmacy was suspected of running PSE. Be that as it may, Mr Tavakol's evidence as to his expectations of being contacted by police if they believed PSE runners to be targeting the pharmacy must be considered in light of his concession that he himself ought to have known that the pharmacy was being targeted.

[20] Although participation in Project STOP was not compulsory, Mr Tavakol implemented it immediately upon its introduction.

[21] In light of this evidence, caution must be exercised in placing too much reliance on the rank by pharmacy report. In the absence of further evidence as to participation rates, it may reflect no more than that Mr Tavakol's pharmacy sold more PSE than other pharmacies which participated in the voluntary project; or even that Mr Tavakol's pharmacy simply recorded more fully the sales of PSE than may have been the case for other pharmacies which participated.

[22] Given the voluntariness of the participation both within Queensland until July 2010 and in other states, it would be dangerous to proceed on the basis that Mr Tavakol's pharmacy sold more PSE than any other pharmacy.

Does this conduct amount to Professional Misconduct?

[23] Much of Mr Tavakol's case was directed to distinguishing the role which he played in respect of the relevant sales of PSE to that played by other pharmacists employed in the pharmacy, particularly his former wife, Ms Naghdi. He contends that the circumstances of his wife (as she then was) working in the pharmacy made his situation "very unique".

[24] Mr Tavakol contended that Ms Naghdi, who he described as being young and inexperienced, had a very different view on how to run his pharmacy to his own. He says that Ms Naghdi believed she didn't need procedures and protocols and that whilst in charge of the pharmacy she ran it "her way" and ignored his advice, and the systems which he had put in place. He says he was misled to believe that everything was under control. Apart from her handling of PSE sales, Mr Tavakol says that Ms Naghdi ran the pharmacy well.

[25] It is clear though that Mr Tavakol did realize that there were problems with the way in which Ms Naghdi dealt with sales of PSE. Her dispensing practices were a source of concern to him. He was concerned about the frequency of the sales, and that she was not establishing therapeutic need or counselling patients. In short, he said that Ms Naghdi was not discharging her obligations.

[26] He says that he attempted to counsel her, but this caused many marital difficulties. He says that Ms Naghdi would not listen to his years of experience and the guidance he had previously given her. Mr Tavakol illustrated the extent to which his then wife ignored his counselling in relation to dealing with PSE sales by referring to one occasion during the period when his foot was broken when he attended the pharmacy. He counselled Ms Naghdi and demonstrated to her how to establish a patient's therapeutic need.

[27] Ms Naghdi's response, he says, was to mock him with laughter and say that he had wasted his time and hers.

[28] He says that he could not tell Ms Naghdi what to do and what not to do as she was his wife. He said that he would not run the practice that way and that, had Ms Naghdi not been his wife, he would have dismissed her.

[29] He describes Ms Naghdi as being "the managing partner (through marriage)" in the pharmacy. He describes the pharmacy as being held in his name and, as a consequence, Ms Naghdi requiring the family house to be in her name. The profits from the pharmacy were directed toward discharging the mortgage on their home.

[30] In my opinion, Mr Tavakol's attempts to absolve himself from responsibility, or to minimise the extent of his responsibility, by sheeting home responsibility to Ms Naghdi are misplaced.

[31] Mr Tavakol cannot rationally contend that he would not run his pharmacy in the manner in which it was run by Ms Naghdi. For all intents and purposes he did run his pharmacy in that way. He knew how it was being run and, despite his concerns, he permitted it to continue to be run in that way. To say that he could not change things because he could not tell his wife what to do and what not to do is to confuse disinclination for incapacity.

[32] Leaving Ms Naghdi to manage the pharmacy when his concerns as to her inappropriate practices were so great as to warrant her dismissal was an abdication of his responsibility to the profession and to the public. He cannot now dissociate himself from Ms Naghdi's conduct, or that of other pharmacists within the pharmacy.

[33] In David Loewy and Sandra Loewy v Pharmacy Board of Victoria,[3] two married pharmacists had been found guilty of conduct discreditable to a pharmacist in relation to sales of the drug ephedrine. Mr Loewy managed the pharmacy and Mrs Loewy had only limited participation. Although given in the context of the responsibilities of pharmacists under the Pharmacists Act 1974 (Vic), Hedigan J made observations about the ongoing and separate responsibilities of married pharmacists who are partners in a pharmacy practice which, in my view, are apposite in this case. His Honour said:

Mrs Loewy did not discharge her responsibilities at all in any specific way. Whilst a consideration of the Act indicates that there may be a pharmacist partner not necessarily working in that particular pharmacy, the scheme of the Act is such, as the Board indicated, to require all of the persons involved in having responsibility for the pharmacy to exercise responsibility in relation to it ...

In my view such a responsibility is not capable of being discharged by holding personal belief in the integrity and professionalism of one's employee or partner. It requires supervision and acquaintance with what is occurring at the pharmacy when the relevant person is not present ...

It cannot be in this day and age other than discreditable for a full pharmacist partner to detach herself from her responsibilities utterly, not bothering to make any enquiries, nor seek information to satisfy herself that the professional and legal requirements that have to be met are being met. This would elevate careless ignorance or wilful blindness to a state of a defence.[4]

[34] In my view, the circumstances here are even more serious than those in the Loewy case. Firstly, Ms Naghdi was not formally a partner in the business. Secondly, whilst the principles expressed by his Honour would preclude Mr Tavakol from avoiding responsibility for failing to sufficiently involve himself in the management of the pharmacy so as to discharge his professional responsibilities and obligations, here he was sufficiently involved to be aware of the nature and extent of the failures of others, particularly Ms Naghdi, to discharge their (and the pharmacy's) obligations. Being aware of those failings, he ultimately chose a course which, as he knew, would not address the identified problems but would ensure their continuance.

[35] This, in my view, places his conduct in a worse category. His conduct fell substantially below the standard reasonably expected of a pharmacist of his training and experience. It was professional misconduct.

[36] Mr Tavakol will be reprimanded.[5]

[37] Both the Board and Mr Tavakol agree that this is an appropriate case to suspend his registration as a pharmacist.[6] The Board submits that there should be a period of actual suspension. It contends for an overall period of suspension of 9 months. It says that the suspension should be suspended after 3 months for an operational period of 12 months during which time Mr Tavakol must not be the subject of any disciplinary action by the Board or the Tribunal.

[38] Mr Tavakol, on the other hand, contends for an overall period of suspension of 3-6 months. He says, though, that the suspension should be wholly suspended.

[39] Neither party has identified the basis upon which the Tribunal may suspend a suspension of a registrant's registration imposed under s 196(2)(d) of the National Law. Section 196(2) provides that if a responsible Tribunal (in Queensland, QCAT) makes a decision that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct, the Tribunal may, amongst other things, "suspend the practitioner's registration for a specified period".

[40] The National Law makes no express provision for the suspension of a registrant's registration pursuant to s 196(2)(d) to itself be suspended. This is to be contrasted with the legislative regime established under the Health Practitioner's (Disciplinary Proceedings) Act 1999 (Qld) ('Disciplinary Proceedings Act') which formerly applied to registrants in Queensland. By section 241(2)(g) of the Disciplinary Proceedings Act, the Tribunal was, amongst other things, permitted to suspend the registration of the registrant against whom it was satisfied that a disciplinary ground had been established.

[41] Part 6, subdivision 6 of the Disciplinary Proceedings Act provided for suspended decisions. Section 247(1) authorised the suspension of certain decisions, including a suspension of a registrant's registration under s 241(2)(g).

[42] The suspension of the suspension was only authorised if the Tribunal was satisfied that it was appropriate in the circumstances.[7] The whole or part of the suspension could be suspended.[8]

[43] Importantly, there was a process established for dealing further with the registrant in respect of the suspended portion of the suspension if a further ground for disciplinary action was found to exist against him or her in the future. The Tribunal was required to state a period during which the registrant was not to be subject to disciplinary action by the Tribunal if he or she was to avoid being further dealt with.[9]

[44] If a further disciplinary matter was referred to the Tribunal and the referral notice stated that that matter happened during a period when the registrant was subjected to a suspended suspension (or other suspended decision), the Tribunal was to deal with the further matter, and the fact that it happened during a suspension period.[10]

[45] If the Tribunal determined that a ground for disciplinary action existed in respect of the further matter, it was required to ask the parties to make submissions in relation to the suspended decision.[11] After considering those submissions the Tribunal could impose the suspended decision, or a part of it.[12] If the Tribunal considered the imposition of the suspended decision unfair, it could extend the period of the suspended decision by up to 1 year.[13]

[46] As can be seen, the Disciplinary Proceedings Act not only made express provision for the suspension of decisions, including suspension of registration, but also provided a detailed mechanism for further dealing with the matter in the event that there was further conduct by the registrant during the period of suspension which gave rise to grounds for disciplinary action. There is no such mechanism under the National Law. Whilst the orders proposed by the Board propose an "operational period ... during which the registrant must not be the subject of any disciplinary action by the Board or Tribunal", it does not identify what is to occur in the event that the registrant is subject to the further action during the period.

[47] In the absence of any statutory provision conferring authority upon it to do so, it is difficult to see how the Tribunal could further deal with the matter. It would appear that it would be functus oficio in relation to the earlier matter.

[48] In its terms, the order proposed is also unsatisfactory and rather highlights the problem. Unlike the regime under s 250 of the Disciplinary Proceedings Act which only triggered consideration of the suspended decision upon the Tribunal deciding that grounds for disciplinary action existed in respect of the more recent matter, the trigger under the proposed order would seem to be the mere fact that disciplinary action was being taken against the registrant by the Board. The further allegations against the registrant may be dismissed; but he or she would still be subjected to the imposition of the earlier suspended decision.

[49] I am aware that under the National Law there have been other decisions of the Tribunal in which suspensions of a registrant's registration have been suspended. Indeed the decision concerning Ms Naghdi was such a case. However, I am not aware of the question of the Tribunal's power to suspend a suspension having been considered in any of those earlier cases. It may well be that they proceeded, as this matter seems to have, on an assumption shared by the parties that such a power existed.

[50] The power to suspend penalties has featured in the law from time to time and in different contexts from as early as the ecclesiastical courts of the 14th century. However, in the absence of a statutory power I do not consider that the Tribunal is able to suspend the operation of any of the actions it is authorised to take under s 196 of the National Law.

[51] When looking for comparators in fixing an appropriate sanction, the absence of the power to suspend any suspension imposed has some bearing on the consideration of earlier cases in which that power not only existed, but was exercised. In a number of cases referred to in the Board's submissions the suspensions imposed were wholly suspended.[14]

[52] In other cases there have been longer periods of actual suspension. But those have included cases in which the pharmacist had been convicted of producing a dangerous drug. In Pharmacy Board of Australia v Daddow,[15] a pharmacist who had been convicted and sentenced to 3 years imprisonment with immediate parole was suspended for 18 months to be suspended after 3 months for an operational period of 18 months. In addition to his criminal conviction, the registrant had been found to have engaged in unsatisfactory professional conduct under s 124(1)(a) of the Disciplinary Proceedings Act, which included misconduct in a professional respect, by having sold 1430 to 2000 packets of PSE over an 8 month period in 2006. About 75% of the products sold were to persons who he knew, or suspected, of being drug runners, and for reasons other than a therapeutic need for the product. The majority of the sales were also not recorded.

[53] So too in Pharmacy Board of Australia v Huynh[16] the registrant had sold 1500 packets of PSE to a person who had used 20 to 40 stolen licenses to facilitate the purchase of 20 to 40 products of PSE at any 1 time. In a covert conversation with an undercover police officer Mr Huynh demonstrated that he knew the improper, and indeed illegal, purpose for which the PSE was being purchased and even discussed where "recipes" might be found on the internet. He was convicted in the Supreme Court of having produced a dangerous drug. At the time at which Mr Huynh was dealt with by the Tribunal he was no longer registered. He was prohibited from applying for registration for one year.

[54] The present case does not have the aggravating features of the cases of Daddow and Huynh.

[55] In my view, considerations of parity arise between the sanction imposed upon Ms Naghdi and that to be imposed on Mr Tavakol, given their respective conduct. Ms Naghdi was found to have engaged in professional misconduct. Her registration was suspended for a period of 6 months to be suspended after 1 month for an operational period of 12 months.

[56] It appears from the Tribunal's reasons that the power of the Tribunal to suspend the suspension of her registration was not considered in that case. Rather, it appears to have proceeded on the basis, mutually assumed by the parties, that such a power existed. The parties had filed a joint submission on sanction. The joint proposed sanction, as recorded in the reasons,[17] was that Ms Naghdi's registration would be suspended for 6 months if she failed to comply with certain orders, or was the subject of further disciplinary proceedings. This form of proposed order seems to suggest some kind of conditional sanction. That is, that a suspension was not being imposed, but might be imposed in the future if certain events occurred. That, in my view, would not be an order for the suspension of registration as contemplated by s 196(1)(d) of the National Law. It may be, however, that what was being proposed was simply the imposition of a 6 month suspension, wholly suspended.

[57] In the event, the Tribunal was not satisfied that the sanction proposed by the parties would achieve the protective objectives of the legislation. The Tribunal sought submissions on the appropriateness of a 6 month suspension suspended after 3 months, and a period of supervised practice.

[58] On behalf of Ms Naghdi it was accepted that a period of actual suspension was appropriate. However, it was sought to have that period of actual suspension limited to one month because a longer period would have resulted in the loss of her then current employment. In the event, the Tribunal acceded to that request.

[59] Therefore, for the purposes of considering parity between Ms Naghdi and Mr Tavakol, it can be seen that the Tribunal would have imposed an actual period of suspension of 3 months but for the mitigating factors which resulted in a 1 month period of suspension actually to be served.

[60] In my view, Mr Tavakol's misconduct is to be viewed as being in the same order as Ms Naghdi's. Whilst, on the one hand, it was Ms Naghdi who was involved in the majority of inappropriate sales, and Mr Tavakol was not involved in any, on the other hand, responsibility for management of the pharmacy fell to him. He concedes that he ought to have been aware, at least for part of the relevant period, that the pharmacy was being targeted. Moreover, having identified the inappropriate sales of PSE he knowingly failed in stopping the sales. He allowed his marital relationship with Ms Naghdi to take precedence over his obligation to at all times act in a manner which promoted and safeguarded the interests and welfare of clients and the community, and his obligation to exercise his professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or the supply of unnecessary or excessive quantities of medicine and other products, particularly those which have a potential for abuse or dependency.[18]

[61] It is evident from the number of cases which have come before this and other Tribunals concerning the inappropriate sale of PSE by pharmacists that there is a need for sanctions for such conduct to have a deterrent effect on other members of the profession who may be inclined to conduct themselves, and their practices, in a similar way.

[62] In my view, suspension of Mr Tavakol's registration for the period of 1 month is appropriate. Had it not been for the reduction of Ms Naghdi's suspension from 3 months to 1 month, I would have been inclined to suspend Mr Tavakol's registration for 3 months.

[63] Section 196(2)(d) permits the tribunal to suspend the practitioner's registration for a specified period. In my view, that permits the Tribunal to order that the suspension commences on a date other than the date of my order. Given that a considerable time has passed since the hearing this matter, it is appropriate that the suspension commence 28 days after the making of the order. That will allow Mr Tavakol to put in place arrangements for the operation of the pharmacy in his absence. The period of suspension will be from 5 June 2014 to 3 July 2014, inclusive of each of these dates.

[64] In addition to the sanction of suspension, the Board seeks that a number of conditions be imposed upon Mr Tavakol's registration following the suspension period. In large part, Mr Tavakol agrees to those conditions.

[65] The Board seeks the imposition of a condition that Mr Tavakol undergo a period of 6 months supervised practise in an accredited pharmacy for not less than 2 hours per month. The Board seeks a further condition that following that period of supervised practice, Mr Tavakol undergo a period of mentoring of not less than 2 hours per month for 12 months. Mr Tavakol is accepting of those conditions, save that he submits that they should only operate for a combined period of 12 months. In my view, that is appropriate. Both the supervision and mentoring will be for periods of 6 months each.

[66] The Board seeks an order that the supervisor and mentor, in each instance, be a practising pharmacist senior in age to the registrant. Mr Tavakol does not oppose a condition of supervision and mentorship, but contends that the age of the pharmacist should not matter provided that he or she has a minimum level of business experience (he suggests 12 years) and holds the correct qualifications. There is some merit in Mr Tavakol's submission that age should not be of importance. However, as he himself has identified in his dealings with Ms Naghdi, age and experience can be separate qualities, both having some bearing on relationships between pharmacists. It will be recalled that he referred to Ms Naghdi as being "young and inexperienced". In my view, having the supervisor and mentor as being senior in both age and experience is appropriate.

[67] The Board seeks a condition that in addition to mandatory continuing professional development requirements Mr Tavakol complete a module in domain 3 (leadership and management) within 12 months. Mr Tavakol does not oppose this, but says that he has been unable to locate such a course.

[68] Similarly, the Board seeks the imposition of a condition that Mr Tavakol complete an accredited course in appropriate dispensing. Again, Mr Tavakol does not oppose this condition, but says that his inquiries have not established the availability of any such course. The Board's proposed conditions require Mr Tavakol to nominate the course to the Board for approval.

[69] To accommodate the possibility that Mr Tavakol may not be able to identify an appropriate CPD module or dispensing course, or the possibility that the Board may not approve the dispensing course nominated by Mr Tavakol, he should have liberty to apply to the Tribunal in respect of those conditions. If he was not given liberty to apply, an injustice could be worked against him. Because s 196(3) of the National Law requires the Tribunal to decide a review period for the condition, and s 125(2) prohibits application by him to change or remove the condition during the review period unless he reasonably believes that there has been a material change in his circumstances, Mr Tavakol may find himself in breach of the conditions simply because he has been unable to find an appropriate CPD module or dispensing course. So too, an injustice could be worked upon him if he was to be in breach because the Board unreasonably failed to approve the nominated course.

[70] This would also apply to a further condition which the Board seeks and which Mr Tavakol does not oppose. That is that he is to complete an accredited course on appropriate dispensing. Liberty to apply should be given in respect of that condition also for the same reasons as stated above. Furthermore, in the proposed orders submitted by the Board, no period is fixed for the completion of an accredited course on pharmacy management or the completion of an accredited course on appropriate dispensing. In my view, those courses should be completed within 18 months.

[71] For those reasons he should have liberty to apply on those matters.

[72] The Board seeks an order that the conditions imposed be recorded on the Board's register for the period which they are in force. Mr Tavakol says that he is not sure what that means; but requests the conditions not be recorded on the Board's website, or at least not in detail because he believes he is not of any threat to the public. He fears that the recording of the conditions or their detail on the website may adversely affect his dealings with his landlord and bankers.

[73] Section 225(k) of the National Law requires the national register to include details of any condition imposed on a practitioner's registration. There is, however, no need for an order to that effect. The Act requires it.

[74] The Board seeks that a review period of 3 years be imposed in respect of the conditions. The effect of such an order, coupled with the operation of section 125, is that Mr Tavakol will not be able to apply for their amendment or removal during the life of the orders save in circumstances of material change. Given that none of the conditions will operate for an indeterminate period, and that Mr Tavakol has not opposed any of the periods of operation, the setting of a 3 year review period is appropriate. This is particularly so in circumstances where has been given liberty to apply in respect of those limited matters to which I have already referred.

[75] The Board seeks an order that Mr Tavakol not be permitted to apply to Queensland Health for the reinstatement of his unrestricted endorsement to deal with PSE until he has complied with the conditions of supervision, mentorship, and completion of the courses on pharmacy management and appropriate dispensing. In my view, Mr Tavakol's registration should not be burdened with such conditions. The matter of whether he is to have his rights to deal with PSE reinstated is a matter for Queensland Health; just as it was a matter for Queensland Health to remove those rights in the first place. It would seem perverse that in circumstances in which Queensland Health considered it appropriate to reinstate Mr Tavakol's rights to deal with PSE he would face deregistration for breaching his conditions simply for applying to Queensland Health for that to occur.

[76] The Board seeks its costs. Mr Tavakol opposes an order for costs, or seeks that they be limited to $10,000.00.

[77] It is appropriate in disciplinary proceedings such as this that the Board have its costs. As has been stated by this Tribunal and others on other occasions, the Board is funded, in large part, through the registration fees paid by members of the profession. Members of the profession of good standing should not be left to carry the burden of the costs incurred by the Board in disciplining members of poor standing. Mr Tavakol will be ordered to pay the Board costs as agreed or assessed by the Tribunal.

[1] Statement of agreed and disputed facts at paragraph 25.5 to 25.6.

[2] Statement of agreed and disputed facts at paragraph 26 to 30.

[3] [1992] VSC 630 (7 December 1992).

[4] David Loewy and Sandra Loewy v Pharmacy Board of Victoria [1992] VSC 630 (7 December 1992), 27-32.

[7] Health Practitioners (Disciplinary Proceedings) Act 1999, s 247(2).

[14] Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552, 3 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Kent [2012] QCAT 329, 3 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Smith [2012] QCAT 186, 6 months wholly suspended for 12 months; Pharmacy Board of Australia v Donnelly [2011] QCAT 584, 6 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Booy [2011] QCAT 522, 3 months wholly suspended for 12 months; Pharmacy Board of Australia v Heron [2011] QCAT 424, 3 months wholly suspended for 18 months.

[15] [2013] QCAT 41.

[16] [2013] QCAT 42.

[17] Pharmacy Board of Australia v Naghdi [2012] QCAT 675 at [26].

[18] Obligations 1.1 and 1.3 Pharmaceutical Society of Australia Code of Professional Conduct.