[3] Although the criminal charges relate to a sum of $3,000, he repaid his former employer the total sum of $93,000. The material before the Tribunal does not reveal how that sum was calculated or who calculated it. Although Mr Thomas did not expressly admit this, the disciplinary matter has proceeded on the understanding that $93,000 is the total sum he wrongly took from his employer.

[4] This case has raised an uncommon dilemma for the Tribunal. The parties made a joint submission for an order to suspend Mr Thomas' registration for 3 years, the order to be suspended after 3 months. After conferring with the assessors assigned to sit with me on this matter, I requested submissions from the parties about orders that involved a shorter period of suspension (12 months suspended after 3 months). Both parties maintained their support for the length of suspension initially proposed, although it is evident Mr Thomas felt constrained somewhat by his agreement to the orders as proposed.

[5] Consistent with its obligations to proceed in a manner that is accessible, fair, just, economical, informal and quick,[5] the Tribunal routinely directs parties in disciplinary proceedings to attend a compulsory conference[6] presided over by a Member of the Tribunal. The primary purpose of the conference is to explore what issues are really in dispute, and to narrow the matters the Tribunal need determine.

[6] Parties are encouraged to confer and reach agreement, where they can, about the relevant facts. The Tribunal also invites parties to make joint submissions about the disciplinary findings and the orders the Tribunal might make.

[7] Although the Tribunal does have some power to enquire,[7] it does not pursue an investigative function in relation to the facts if the parties provide an agreed statement of facts. If the parties provide an agreed statement or if they make concessions about the facts during a hearing, as a matter of procedural fairness, the Tribunal should not determine the facts otherwise without notice to the parties.[8]

[8] The Tribunal has a public interest function in relation to disciplinary proceedings. It must make disciplinary findings about how the admitted conduct should be categorised. Those findings, amongst other things, have implications for the sanction the Tribunal might consider appropriate.

[9] Although the parties are encouraged to agree on a joint submission about these matters, the Tribunal has instructed Members presiding at such conferences to inform parties the Tribunal's function in this regard cannot be delegated to the parties and a joint submission about them will not bind the Tribunal. The Tribunal provides parties directed to attend a compulsory conference in disciplinary proceedings with a fact sheet that conveys the same message.

[10] Decisions of the Tribunal in disciplinary matters are decisions of the Tribunal, not the parties. The Tribunal, not the parties, must justify its decision and is accountable for it. The scope of the Tribunal's discretion on sanction cannot be constrained by agreement between the parties, whether resulting from a compulsory conference or direct negotiation. Decisions made by the Tribunal in these proceedings do not have consequences only for this matter, they are referred to in later proceedings of a like nature. The Tribunal should not impose sanctions it does not consider are justified, even when the parties consent to them.

[11] For the reasons that follow, I consider the orders made by the Tribunal are appropriate in the circumstances of this case.

[12] When Mr Thomas took money from his employer, he was a junior pharmacist employed as a manager. He was 25 years old and only recently qualified as a pharmacist. He did not contest the Board's submission that he overpaid himself or took cash from the pharmacy takings before banking them. He was under financial pressure at the time, created by a combination of personal circumstances that give context to, but do not excuse his conduct.

[13] He was in a relationship with a wealthier partner and felt pressure to maintain a lifestyle he could not afford. More creditably, and consistent with his cultural background (Chinese), he assumed significant financial obligations when his parents' marriage broke down. He purchased a house for his mother and grandparents to reside in, so they did not have to pay rent, and he solely bore the burden of the mortgage repayments. The combination of these two factors appears to have led him to behave in what is, evidently, an uncharacteristic manner.

[14] There is some indication Mr Thomas estimated the sum he took was some tens of thousands of dollars less than his employer calculated it to be, but he did not dispute and has repaid the figure nominated by his employer.

[15] On either calculation, Mr Thomas must have taken money he was not entitled to on numerous occasions over a lengthy period. His breach of his employer's trust was fundamental and protracted.

[16] Mr Thomas accepts his conduct was unsatisfactory professional conduct. Honesty is a fundamental aspect of professionalism. His stealing, whether in his capacity as a pharmacist or otherwise, is discreditable to his profession. It occurred when he was fulfilling his function as an employed pharmacist and is properly regarded as misconduct in a professional respect. His failure to report his conviction to the Board was a breach of his professional obligations.

[17] When Mr Thomas was sentenced he had no criminal history, a factor that was relevant to the decision not to record a conviction. These events occurred sometime between 2003 and 2005, although the Board has not been precise about when the offending started. There is no evidence of unsatisfactory conduct since then (almost 6 years ago).

[18] Since he left the pharmacy he stole from, Mr Thomas has worked almost continuously as a pharmacist and without incident. He provided a favourable reference from a former employer. The referee did not state she provided her assessment with knowledge of his offences or these proceedings. She described him as a hard working, honest, articulate and extremely professional pharmacist, who was well respected and popular amongst staff and customers alike.[9]

[19] Mr Thomas has undertaken counselling by two psychologists between December 2005 and September 2006 and in 2011. Reports from both psychologists indicate Mr Thomas was committed to addressing the issues that contributed to his offences. Mr Lynagh, who saw him 15 times in 2005-2006 and three further times in 2011, considered Mr Thomas' conduct had its origins in his disturbed and depressed state at the time, as opposed to any inherent dishonesty and criminality.[10]

[20] Consistent with the co-operative approach Mr Thomas has maintained throughout the disciplinary proceedings, he has prepared to meet the Board's costs by placing his home on the market.

[21] His early engagement in therapy, his years of consistent good conduct and his extensive co-operation in these proceedings are all relevant factors in considering what view the Tribunal should take now of his past conduct.

[22] The Board asserted a relevant factor in determining sanction in Mr Thomas' case is the relatively light sentence imposed by the criminal court. Given the purpose of disciplinary proceedings, that submission is misconceived. The agreed bundle of documents reveals that these proceedings were driven by disquiet about the criminal process, a factor that may have distracted the Board and its representatives from a proper focus on the purpose of disciplinary proceedings.

[23] One of the owners of the pharmacy, Mr Fallon, complained to the Board about Mr Thomas' conduct two and a half years after he had been dealt with for the offences. He said:

I wish to raise this matter now at this stage with the Pharmacists Board as I do not believe the matter has been dealt with fairly or adequately.[11]

[24] It is evident his concern related to the adequacy of the criminal sanction. Apparently he did not consider, earlier, that Mr Thomas' conduct was a matter for professional discipline.

[25] From another letter from Mr Fallon, it seems he and his partner engaged a forensic accountant, Mr Green, to investigate how much Mr Thomas may have taken. Mr Fallon apparently expected Mr Thomas to be charged with the amount Mr Green estimated.

[26] It is not clear why the prosecutor did not charge Mr Thomas with a larger sum. The Tribunal will not speculate about this. Mr Green did not prepare a report. His work was preliminary. He did not make any findings. He did not undertake any substantive audit, review or other procedure. The material provided to the Tribunal did not establish the amount taken.

[27] The intersection of criminal offences and professional conduct is a point of contention in disciplinary proceedings, but it is long established that professional boards are intended to protect the community not to punish the professional for their misconduct.[12]

[28] Professional discipline is not an adjunct to or intended to supplement other processes, such as the criminal justice system. Its purpose and focus is to maintain professional standards and confidence in the profession and to protect the public.

[29] While conviction for an indictable offence is a ground for taking disciplinary action, this does not mean the purpose of disciplinary proceedings is to punish that conduct further. Rather, it is an indication the professions expect their members to be law abiding. If a member of the profession commits a criminal offence punishable by imprisonment, this reflects on the reputation of the profession and may damage public confidence in it.

[30] In determining sanction, in a disciplinary proceeding the focus must rest on those features of the conduct that might undermine public confidence in the profession or present a risk to the public, not whether the sentence imposed by the criminal court is lenient or harsh.

[31] Mr Thomas was dishonest over a sustained period. That calls into question his character. Good character and honesty bear directly upon professionalism. In assessing what disciplinary sanction it should impose, the Tribunal must assess Mr Thomas' fitness to practise at the time of the hearing, not at the time of the conduct. The evidence before the Tribunal suggests that his dishonesty, as sustained and serious as it was, does not reflect his character now.

[32] The period of suspension that the parties have nominated, three years, is lengthy. The Board referred to four cases in support of its submissions.

[33] In Lake v Pharmacists Board of Queensland[13] a pharmacist convicted of offences involving defrauding the Commonwealth of over $400,000 over two years had his registration cancelled for 12 months with conditions to be imposed once he was registered again. The combined impact of the criminal penalty and disciplinary sanction was that he did not work as a pharmacist for 20 months.

[34] The Board sought to distinguish this case by reference to the criminal penalty. For reasons already explained, this point of distinction is not apposite. There is another point of distinction, though, that is more relevant. In Lake's case, the element of dishonesty directly involved the practitioner acting in his capacity as a pharmacist. It involved fraudulent claims against the pharmaceutical benefits scheme. Mr Thomas' dishonesty, although whilst working as a pharmacist, was in his relationship of employee and in his capacity as a manager. It did not involve him holding out a right to remuneration based on his professional position.

[35] In Dental Board of Queensland v McCarthy[14] a dentist who defrauded Medicare to the sum of $31,272 had his registration suspended for five months.

[36] In Optometrists Board of Queensland v Manhuyod-Haywood[15] the practitioner was an accessory to false Medicare claims, but did not benefit personally. She was cautioned and conditions were imposed on her registration.

[37] When the Tribunal determined the matter in Pharmacy Board of Queensland v Mikhail[16] the pharmacist had already served two years suspension the Board had imposed because his practise was unsatisfactory and presented a risk to the public. The Tribunal accepted undertakings from the practitioner that addressed the risks presented by his lack of competence and professionalism. It bears no relevance to these proceedings.

[38] Those cases do not support suspension for three years. Such a lengthy suspension does not sit comfortably with the request to suspend that order after only three months. From the Board's most recent submissions, it seems that the Board considers 12 months does not sufficiently reflect the seriousness of the conduct, given the period of offending and the amount of money involved. They are factors more relevant to criminal sanction. They could have more bearing, particularly the period of dishonesty, if the Tribunal did not have the benefit of assessing Mr Thomas' conduct since the offences over some six years.

[39] The Board has also reiterated its submission for an operational period of three years for the suspended order. The basis for this is a concern that Mr Thomas will be most vulnerable and likely to re-offend at the end of the first 12 months when he has completed his ethical decision making course and will no longer be subject to mentoring or supervision. That might be more persuasive if Mr Thomas did not already have a lengthy period during which he has not re-offended. During that time, Mr Thomas has undertaken therapy to address the factors that contributed to his offences and has demonstrated his ability to work professionally without the support network the Board proposes he needs for three years.

[40] The Board has provided helpful submissions about the process provided for by the Health Practitioners (Professional Standards) Act 1999 if Mr Thomas breaches the conditions under which the order is suspended. The effect of the relevant provisions is that the Board would need to consider whether to refer the conduct to the Tribunal, which would then decide whether the suspended decision should be imposed in full or part.[17] The Tribunal agrees with the form of orders proposed by the Board to conform with that process.

[41] Other than the period of suspension, the Tribunal will make the orders jointly proposed by the parties.**

[1] Health Practitioners (Professional Standards) Act 1999, s 124(1)(i).

[2] Health Practitioners (Professional Standards) Act 1999, definition of unsatisfactory professional conduct (h).

[3] Health Practitioners (Professional Standards) Act 1999, s 385A.

[4] Health Practitioners (Professional Standards) Act 1999, s 124(1)(f).

[5] Queensland Civil and Administrative Tribunal Act 2009, s 3(b).

[6] Queensland Civil and Administrative Tribunal Act 2009, s 67.

[7] Queensland Civil and Administrative Tribunal Act 2009, ss 3(c), 62(3).

[8] O'Keeffe v Richards and Anor [2010] QSC 386, [29]-[30].

[9] Reference by Janette Quinn 27 July 2011.

[10] Report of Ian Lynagh, Consultant Psychologist, 1 July 2011 p 5.

[11] Letter from Sean Fallon to the Pharmacists Board of Queensland, 8 April 2009.

[12] New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183.

[13] Lake v Pharmacists Board of Queensland [2009] QHPT 2.

[14] Dental Board of Queensland v McCarthy [2001] QHPT 005.

[15] Optometrists Board of Queensland v Manhuyod-Haywood [2000] QHPT 002.

[16] Pharmacy Board of Queensland v Mikhail [2010] QCAT 621.

[17] Health Practitioners (Professional Standards) Act 1999, ss 247(4), 250.