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[2010] VCAT 1276
Victorian Civil and Administrative Tribunal
2010-08-04
Senior Member J, Member P
Original judgment source is linked above.
OCCUPATIONAL AND VCAT Reference: B6/2010 BUSINESS REGULATION LIST
Health Professions Registration Act 2005 - referral by Pharmacy Board of Victoria to Tribunal for hearing - allegations by Board admitted by practitioner - determination by Tribunal of "professional misconduct" - reprimand - suspension of registration - conditions imposed on registration - order for costs.
MEDIA NEUTRAL CITATION: Pharmacy Board of Victoria v Danigelis (Occupational and Business Regulation) [2010] VCAT 1276
ORDER SUMMARY: 1. The respondent is reprimanded.
For Applicant: Mr. A. Albert of counsel, instructed by O'Donnell Salzano, lawyers
For Respondent: Mr. I. Hill QC with Mr. J. Gullaci of counsel, instructed by Tony Hargreaves and Partners, lawyers
Craig v. The Medical Board of South Australia [2001] SASC 169
Ha v. Pharmacy Board of Victoria [2002] VSC 322
Peeke v. The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994)
Mr. Albert told us that the bulk of the medicines involved were AAS and growth hormones. The AAS involved in this case were testosterone or testosterone related medicines - Sustanon®, Primoteston Depot®, and Deca-durabolin®. Mr. Albert said that AAS have been infamous for many years as drugs of abuse in sport and body building. Large doses build muscle bulk and strength - the "anabolic effect". Their abuse carries with it many serious health risks. (Material filed on behalf of the Board included various relevant Sports Medicine Journal articles relating to AAS abuse). The growth hormone and similar were Pregnyl®, Scitrophin®, Omnitrope®, and Genotropin®. Growth hormone is also abused in sport and body building - first, it has an anabolic effect by stimulating growth and cell reproduction and regeneration; and, secondly, it is used to counter adverse effects of AAS. Large doses of AAS in a male body will shut down the body's own production of testosterone resulting in testicular atrophy and other serious effects. Growth hormone is used to maintain and restore testicular size and normal testosterone production. Phentermine (Duromine®) is misused for its stimulant effect and on occasions for its appetite suppressant effect (which is its approved indication). The benzodiazepine under consideration in this case is alprazolam. Benzodiazepines are regularly abused for their sedative effect.
The instances of dispensing were categorised by the Board in three schedules - A, B and C. Schedule A referred to the matters that were before the Magistrates' Court. These related to the dispensing of testosterone under the brand names Sustanon®, and Primoteston Depot® to a number of persons. The agreed position was that there were eight such cases and that this conduct occurred from July 2005 to April 2007. The charge "rolled up" the patients to which it related and Mr. Danigelis pleaded guilty.
We were told that the subject of Schedules B and Schedule C covered a period of two and a half years - 6 July 2005 to 26 January 2008. During that period there were 82 dispensing episodes and 158 instances of dispensing or "dispensing instances". (If there were, say, two instances of dispensing at the one time - dispensing the script and a repeat - that was treated as one episode). Mr. Albert said that the 158 instances of what we will call the "Schedule B dispensing" and "Schedule C dispensing" related to a total of 17 patients (six of whom were also patients referred to in Schedule A). Those instances of dispensing took place on 67 days in 82 dispensing episodes - that is, on average fortnightly. Mr. Thirlwall had analysed this dispensing data and formed the opinion that a competent pharmacist would have recognised that precautions should be taken before dispensing in all of those 158 instances. This was because, among other things, the nature of the medicines involved would normally raise a competent pharmacist's suspicion in that there were cases of overly frequent prescriptions; excessive quantities prescribed; unusual or concomitant drug treatment; prescriptions presented on the same day for the same or similar medication from the same doctor for different patients; an awareness that a particular patient had previously been investigated in relation to forged prescriptions; some prescriptions written by psychiatrist; and one case of a patient's spouse being treated with the same drugs.
Mr. Albert said that for all the instances set out in Schedule B - 46 dispensing instances in 27 dispensing episodes for 13 patients - the prescriptions had been found on investigation to have been forged. In relation to that, Mr. Thirlwall's opinion was that in the circumstances of these prescriptions a competent pharmacist would have suspected their safety for the person seeking the dispensing and/or the community and declined to dispense such prescriptions until satisfied of their safety. The first step to become satisfied about patient and community safety would have been to contact the purported prescriber. Mr. Danigelis failed to do that. If he had, he would have learned that each prescription was a forgery and therefore could not be dispensed. On suspecting a prescription to be forged a competent pharmacist is obliged to notify Victoria Police and the Department of Human Services.
In relation to the Schedule C instances - 112 dispensing instances in 55 episodes for four patients - Mr. Albert said that it could not be established that any particular prescription was forged. Medical practitioners who purportedly wrote the prescriptions had stated that they could not have written some of them or that the time of the dispensing was not consistent with the period in which they wrote certain prescriptions. Mr. Thirlwall considered that a competent pharmacist would have recognised that precautions should have been taken and, broadly, would have taken the same steps outlined above. Considering the dispensing history, the drug combinations, the quantities supplied and the fact that the drugs prescribed were known to be misused and abused, a competent pharmacist could not be satisfied that the prescriptions were safe to dispense, even following an inquiry. Mr. Thirlwall also considered that a competent pharmacist could not have had any confidence that the medicines would be used by the person named on the prescription in accordance with an accepted medical protocol.
We note that it was not alleged on behalf of the Board that dispensing a forged prescription necessarily amounts to a lack of competence. Rather, it was alleged that Mr. Danigelis' failure to identify the prescriptions in Schedule B and C as ones for which he ought to have taken standard precautions was a failure to comply with minimum professional standards - whether those prescriptions were forged or not. It was submitted that the fact that the prescriptions in Schedule B were forged and that some prescriptions in Schedule C may have been forged confirmed, first, that the risk of forged prescriptions being presented is a real risk and, secondly, the need for pharmacists to exercise proper professional care in dispensing any prescription, so as to identify potentially unsafe dispensing instances.
One of the tables we were given was headed "Summary of dispensing". This related especially to the Schedule B and C instances. Against the names of 11 of the 17 patients there was a notation that the cases involved the dispensing of an excessive quantity of medicines. Against the name of 13 (some of whom also had the "excessive quantity" notation) there was a notation that dispensing was "overly frequent". Against the names of three patients (some of whom also had one or both of the other notations) there was a notation that there was unusual or concomitant drug treatment.
Mr. Danigelis' initial response to the allegations
It is important that we go further to record the most significant points that Mr. Danigelis made prior to the hearing in response to the Board's allegations as well as the Board's submissions to us about that, centring on a supplementary statement by Mr. Thirlwall.
In an affidavit sworn on 24 June 2010 Mr. Danigelis said that in his opinion the substances referred to in Schedule B and C could have been used for medical purposes. Further, he said that those substances were supplied pursuant to a prescription purportedly from a qualified medical practitioner. In dispensing substances pursuant to a prescription he relied on the professional judgment of the prescribing doctor in issuing the prescription. He said that in the dispensary he had a trainee, a dispensing technician and often a second pharmacist dispensing scripts. If he was in the dispensary area he would check off scripts by comparing the scripts and the medication. This often did not involve him dispensing the script from the dispensing computer. His trainee or dispensing technician would do most of the physical dispensing. He would always check scripts if he was the sole pharmacist on duty, often querying the trainee to make sure that he or she understood what the particular medication was used for, any drug interactions that may occur and how to discuss the medicine with the patient in the event that the medicine was a new one.
For the Board, Mr. Albert submitted that the pharmacist's professional and legal responsibility is to ensure the safety of his or her dispensing to the patient and the community. It is a non-delegable duty. A pharmacist cannot absolve himself of that responsibility by relying on the fact that a prescription is given by a medical practitioner. The pharmacist must satisfy himself or herself that medicine prescribed and directions for its use are safe. That duty cannot be discharged by merely checking the accuracy of dispensed medicine against a prescription. The duty was not discharged because there was the possibility that the medicine could have been used for a medical purpose. The pharmacist should not dispense the medicine unless satisfied that the medicine would be used for a medical purpose. The pharmacist cannot delegate the responsibility to ensure the safety of the dispensing to a dispensary assistant or trainee. Any work that those persons perform in relation to dispensing must be under the direction and supervision of the pharmacist and checked by the pharmacist.
In his affidavit Mr. Danigelis also said that there were two dispensing computers in the MCFG pharmacy. Any person working at a dispensing computer could enter any pharmacist's initials into the computer, he said. There were no security measures to limit this from occurring. He said that, unfortunately, a practice developed in the pharmacy where pharmacists would, often, not alter the dispensing initials from the previous script. He could quite easily have been at My Beauty Spot or at the front of the store handling a customer complaint and a medication with his initials could have gone out to a patient, dispensed by another pharmacist. Deborah Ooi, a pharmacist who worked for him at the pharmacy, made a statement filed in the proceeding that confirmed that the dispensary computers allowed pharmacists to input their initials manually. Ms. Ooi also indicated that the computers would default to the initials of the person who had most recently dispensed a prescription using that computer.
Mr. Albert submitted that a pharmacist has both a legal professional responsibility to identify prescriptions that he or she has dispensed and to accept responsibility for them. A pharmacist is required to initial records of his dispensing and certify all dispensing instances within 24 hours by his of her signature. At this point Mr. Abert referred to certain Guidelines and to provisions of the HPR Act that we discuss in some detail below in the specific context of dispensing. He pointed out that each of the 158 dispensing instances specified in Schedules B and C was recorded as being dispensed by Mr. Danigelis as his initials appeared in the computer records as the pharmacist who performed the dispensing. In addition, Mr. Albert referred to statements accompanying Mr. Thirlwall's investigation report, made by other pharmacists who worked at MCFG, that were to the effect that those pharmacists did not use other pharmacists' initials on the computer. Mr. Thirlwall's supplementary statement contained information about the dispensing programme installed on the computers at MCFG which information tended to indicate that the accidental inclusion of another pharmacist's initials was unlikely. At page six of his statement Mr. Thirlwall said that the requirement to record the correct dispenser's initials in the computer records had been in place for many years and was well understood and complied with by pharmacists.
Mr. Albert said further that the analysis showed that in the 67 days in which the 158 dispensing instances occurred Mr. Danigelis was the only pharmacist who dispensed on 16 of those days. Of the remaining 51 days there were 9 days in which the other pharmacists dispensed 6 or fewer prescriptions and 34 other days on which Mr. Danigelis dispensed more than 75% of the prescriptions that were dispensed.
Mr. Danigelis' affidavit also contained some allegations of his own. He said that in 2005 there was a fall in the profits at MCFG. He together with his then business partner (the partnership having since been dissolved for reasons that Mr. Hill told us were not relevant) looked at the possibility that some form of theft was occurring. Mr. Danigelis' role was to work out why the profits were falling. There was another pharmacist working there at the time, to whom we will refer as "MP". MP's role was to manage the dispensary while Mr. Danigelis was trying to identify the cause of the fall in profits. MP died in road accident in December 2006. Mr. Danigelis said that after MP's death, it became apparent to him that MP had not only been stealing stock and money, but that he had also been asking people if they wanted prescription medication, more specifically testosterone injections. An exhibit to the affidavit contained another person's statement in relation to that. Mr. Danigelis said that MP was selling to patients who were prescribed testosterone injections extra amounts without the patients presenting scripts. Some statutory declarations relating to this were exhibited to the affidavit.
Mr. Albert pointed out that the analysis showed that 74 of the 158 dispensing instances took place in 36 episodes on 28 days after MP's death.
Mr. Danigelis' affidavit also contained the statement that, in his experience, testosterone is regularly used in hormonal replacement for both men and women. He said that Mr. Thirlwall appeared to have acknowledged that and to have conceded that the dose may be adjusted according to the response of the patient.
Mr. Albert submitted that testosterone is well known to be a drug that is widely misused and abused. The quantities of testosterone that Mr. Danigelis dispensed appeared to be far above the quantities needed for its legitimate use. In those circumstances, it was his responsibility to satisfy himself of the safety of the dispensing.
The final portion of Mr. Danigelis' affidavit that Mr. Albert referred us to was one in which he said that in his experience growth hormones were being used by most "anti-aging doctors" to promote growth and repair of skeletal, muscular and other tissues. Growth hormone also stimulated protein synthesis and influenced fat and mineral metabolism.
Mr. Albert pointed out that growth hormone was dispensed to two patients named in the material. He said that Mr. Danigelis could not merely assume that the growth hormone was intended for "off-label use" and was therefore safe, particularly considering the other drugs dispensed to these persons, the quantity and frequency of the dispensing, the cost of the medicine, and the potential for misuse, abuse and on-supply. He said, further, that more than one doctor was prescribing to one of the patients and that one of those doctors was actually a consultant psychiatrist. In these circumstances Mr. Danigelis' professional responsibility required him to confirm the safety of the dispensing and not simply to assume it.
Mr. Hill told us that Mr. Danigelis is aged 45 years. He and his wife of 11 years have two children aged less than 10 years. They live in their own home which is subject to a mortgage. His wife's occupation is home duties so he is the sole breadwinner. He has no prior criminal convictions and no other relevant disciplinary matters. But for the events that led to the referral Mr. Danigelis had led a lawful, useful and productive life, Mr. Hill said. He was a good member of the community.
The death of Mr. Danigelis' mother nine years ago was a shattering blow, we were told. His father, a retired GMH worker, lived nearby. The parents came to Australia as unskilled immigrants. They were proud of their only child's achievements over the years and much of their efforts had been directed towards his education.
We were told of Mr. Danigelis' education, training and work history including his involvement in the two pharmacies and the fragrance and cosmetics shop. All three businesses were geographically close to each other. Mr. Danigelis divided his time between them. He was particularly busy and worked long hours.
For a time the businesses prospered but the work began taking its toll on Mr. Danigelis physically and mentally. The partnership soured and was dissolved. At that time the investigation that led to the Court proceeding was underway. The court proceedings had a terrible effect on Mr. Danigelis' health and psychological wellbeing. There were originally over 200 charges but on the day prior to the hearing nearly all were withdrawn. This was not through any bargaining process. Mr. Danigelis lived with the uncertainty of the criminal proceeding for a period of time. This had a particular impact on him because he did not have any experience of the criminal justice system: he had no prior convictions. The charges were marked dismissed earlier this year, following the twelve month adjournment.
Mr. Danigelis' own local GP had from time to time prescribed sleeping tablets and antidepressants for him because of his physical and psychological state. The investigation and the proceedings also had an effect on his wife that we were told about.
Mr. Hill said that over the time of the offending the MCFG was very successfully filling a very substantial number of scripts each year.
Mr. Hill referred to one of the tables submitted on behalf of the Board. An entry there indicated that on a particular day in 2005 Mr. Danigelis had dispensed medicine on 234 occasions whereas MP had done that on 5 occasions. We were invited to infer that MP had actually been responsible for a number of the dispensing instances attributed to Mr. Danigelis.
Mr. Hill pointed out that notwithstanding the charges and these proceedings Mr. Danigelis had continued to work as a pharmacist without blemish, though on a part time employee basis. It was his desire to return to full time work as the owner of a pharmacy. He recognised that as a pharmacist he had certain obligations that the evidence indicated he failed to live up to. He admitted that his conduct was such that on occasions he failed to exercise proper professional care and recognised that a registered pharmacist was required to identify the risks of dispensing prescription medicines to the community and that he or she had to consider the risks attached to that.
In relation to forged or possibly forged prescriptions, Mr. Hill pointed out that there was no allegation that the Board had alerted pharmacists of misplaced or stolen prescription pads and that those alerts had been ignored. We were generally urged to take care in considering Mr. Danigelis' conduct with hindsight, drawing on what the tables appeared to show because the situation was really one where Mr. Danigelis was working through the relevant period at what was a busy pharmacy.
There was further discussion about Mr. Danigelis' most recent work history. This has included part time weekend work as an employee at another pharmacy. There had been sessional and evening work at other pharmacies. He was making ends meet but even with what we shall describe as some separate additional short term income his total income had fallen to about 20% of what it had been. There had been a "huge" financial cost to Mr. Danigelis as a result of the investigation and the proceedings, Mr. Hill said.
We were given character references made by various persons. One, by a friend of 10 years, Ms. Talar Tamian, referred to Mr. Danigelis as "diligent, honest and a man of integrity". Another, by an accountant introduced through family and friends, Mr. Steve Papas, said that Mr. Danigelis and his family "always worked extremely hard" and that they were held in high regard. This reference also stated that Mr. Danigelis was "severely emotionally affected" by the criminal and disciplinary proceedings. A third was by a pharmacist who employed him for part of the time since the investigation commenced, Mr. John Catsicas. Mr. Catsicas said that he had known Mr. Danigelis for about 20 years. He was aware of the investigation but was still prepared to employ Mr. Danigelis. He often worked alongside Mr. Danigelis and had the opportunity to observe him at work as a pharmacist. He said that during the time Mr. Danigelis worked for him there were neither problems nor complaints. A number of customers in fact praised him highly. He regarded Mr. Danigelis as a very thorough and professional pharmacist. He was a person of honesty and integrity, a trusted, hard working and reliable employee. Mr. Catsicas also saw Mr. Danigelis socially and remarked on the impact that the proceedings had had on him.
Mr. Hill said that the "real penalty" for Mr. Danigelis would be a reprimand. If there were to be a suspension it should be for a minimum period of time. The costs sought by the Board would be an additional burden for him. If Mr. Danigelis could not work as a pharmacist during a period of suspension the financial burden for him would be the greater. Mr. Hill cited a decision of the Supreme Court in Ha v Pharmacy Board of Victoria [2002] VSC 322. We make specific reference to that below.
Towards the end of the hearing we indicated to Mr. Hill that we would be assisted in our deliberations to know more about aspects of Mr. Danigelis' conduct prior to and since the investigation. We wanted to know more about how he saw the admitted misconduct occurring, what he did or failed to do that brought that about. We also wanted to know whether he had subsequently taken any steps to inform himself better about his professional obligations and to ensure that he would meet those obligations in future. Mr. Hill submitted to us that the problem for Mr. Danigelis had been that he had been trying to be a pharmacist at two separate pharmacies and work at the cosmetics store all at once. He was spreading himself thinly. He extended his time beyond his capabilities. He was not devoting sufficient time to his responsibilities. Since then he had ceased to be engaged in three activities at once. He was now engaged in one practice only. That was the remedy, Mr. Hill submitted. In addition, Mr. Danigelis had worked industriously on a part time basis to try to demonstrate that he could be a "useful, lawful helpful pharmacist", an exemplar of what a pharmacist should be.
(d) require the pharmacist to undertake and complete specified further education or training within a specified period;
(e) impose any condition on the registration or endorsement of registration of the pharmacist;
(f) impose a fine on the pharmacist of not more than $10 000;
(g) suspend the registration of the pharmacist for the period specified in the determination;
(i) disqualify the pharmacist from applying for registration under section 4 within a specified period if the pharmacist's registration is cancelled by the Board or by a pharmacist registration authority of another State or Territory of the Commonwealth or of New Zealand;
(j) require the pharmacist to pay the reasonable costs and the expenses of the Board in the conduct of the formal hearing.
"The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession." (at paragraph 41).
See also Ha v. Pharmacy Board of Victoria, cited by Mr. Hill, at paragraphs 121 and 123.
Mr. Albert invited us to consider making a determination that would meet these objectives - a determination that would involve specific deterrence, general deterrence and the maintenance of public confidence in the standards of the pharmacy profession. All are important. In focussing as we do in this case on specific deterrence we do not disregard the other considerations. We aim to meet the objectives. However, for the reasons that follow we see the matter of specific deterrence to be crucial.
We stated earlier that we would return to the Guidelines referred to by Mr. Albert and to the HPR Act in relation to dispensing. We do this now in the context of the uncontested statements made by the Board in relation to the professional responsibilities of pharmacists in dispensing medicines.
Mr. Albert submitted that registered pharmacists are given the privilege of supplying specified drugs because the community and the profession expects that they are suitable persons to undertake that task - that is, they will do so in accordance with legal requirements and professional standards. Those professional standards are set by law and further or alternatively the written and unwritten standards of the profession. These are spelt out by the Board in Directives or Guidelines issued by the Board such as the Pharmaceutical Society of Australia's Code of Conduct ("the Code") and the Board's Guidelines for Good Pharmaceutical Practice. (From this point of our decision it is these to which we refer as "the Guidelines").
According to the Code, the primary concern of the pharmacist must be the health and well being of clients and the community. Dispensing is at the heart of pharmacy practice. Section 110 of the HPR Act provides that a registered pharmacist must take reasonable steps to ensure that the dispensing of a medicine in accordance with a prescription or order is consistent with the safety of the person named in that prescription or order. As Mr. Albert put it, "dispensing" is a term of art. It is a process. The Guidelines - essentially acknowledged as a guide, being the Board's interpretation of the Law and its expectations of members of the profession - explain the process and emphasise the pharmacist's obligation to conduct the process safely and in accordance with professional standards.
Guideline 421 states that dispensing is a process that includes -
Mr. Albert then pointed out that legislation, including section 36 of the Drugs, Poisons and Controlled Substances Act impose specific additional obligations in dispensing particular types of drug. Section 36 requires pharmacists to report immediately to the Department of Human Services the dispensing of prescription only medicines in greater quantities or more frequently than appears to be reasonably necessary. The objectives of that provision, he said, include identifying medical practitioners who may be prescribing excessive quantities of drugs or persons who may be abusing or trafficking drugs.
Pharmacists' professional obligations in dispensing require them to take reasonable steps to ensure that they are dispensing a genuine prescription. It was submitted that fraudulent prescriptions can never be consistent with the safety and well being of a patient or the community and that it was well known that a regular path by which drug abusers or drug traffickers obtain drugs is by having fraudulent prescriptions dispensed at pharmacies. Accordingly, to satisfy their professional obligations, pharmacists must exercise professional expertise to recognise situations that suggest a prescription is not consistent with the safety and well being of the patient. He said that, without being exhaustive, situations that ought to alert a pharmacist include where a prescription is for a known drug of abuse, where excessive or inappropriate dosages are specified, or there are overly frequent prescriptions. The appearance or manner of a patient ought sometimes be what puts the pharmacist on alert. He made reference to Guideline 434 which indicates a number of further matters that pharmacists should consider when dispensing medicines. Pharmacists should also make inquiries if not satisfied that a prescription is consistent with the safety or well being of the patient. They must consult the prescriber if not satisfied (Guideline 433).
Of special significance for the present case, pharmacists must fulfill their obligations personally, Mr. Albert submitted. They cannot delegate the safety obligations of dispensing to another person. This means that an individual pharmacist must personally be satisfied of the safety of the prescription. The pharmacist cannot merely check the accuracy of dispensed medicine against a prescription on the assumption that it is safe because the prescriber is a medical practitioner, and if the pharmacist is not satisfied of the safety of the prescription then the pharmacist must check with the prescriber and/or decline to fill the prescription. The pharmacist may have to do this even if the prescription is confirmed by the prescriber, for a medical practitioner is not always right. The pharmacist cannot delegate the safety responsibilities in dispensing. While the Guidelines permit certain steps in the dispensing process to be undertaken by dispensary assistants and trainees this is always under the pharmacist's personal direction and supervision (Guidelines 485 and 486). (Guideline 486 states in part that assistants may not hand out a dispensed prescription unless a pharmacist has reviewed the patient's medication history, finally checked the dispensed medicine for accuracy and compliance with the prescriber's intentions, and ensured that the supply is consistent with the safety of the patient).
As particularised in the parties' statement of the allegations that were admitted, Mr. Danigelis failed to identify the risk of the dispensing to the safety and well being of the patients and the community. On identifying the risk he would have been required to take some or all of the following action: contact the prescribers, decline to dispense, notify the Department of Human Services, and notify the police in relation to the Schedule B substances. This is the general position, but we have set out what appears in the HPR Act, the Code and the Guidelines because this shows more precisely what, notwithstanding what Mr. Danigelis said in his affidavit, were his failures. Those failures were most serious considering especially the following factors: public safety; the nature of the drugs that were dispensed (many being what may be called "red-alert" drugs); the number of occasions on which they were dispensed and the period of time over which that occurred; the number of episodes on which there was more than one instance of dispensing in these circumstances; the number of prescriptions that proved to be forgeries; the other circumstances that ought to have alerted the pharmacist; and - at least - the failure to be involved properly in the dispensing process.
We consider that this dereliction of duty was substantial and consistent and so we determine that Mr. Danigelis has been guilty of professional misconduct.
We reprimand Mr. Danigelis. By this we emphasise to him and to others in the profession of pharmacy the seriousness of his misconduct. The point was made by Mr. Hill in submissions and the point has been made in many cases by the Tribunal and by the Courts that a reprimand is not a trivial penalty. To a professional person a reprimand has the potential for serious adverse consequences: see, for instance, Peeke v. The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) per Marks J.
Mr. Danigelis pleaded guilty at Court and made substantial admissions in the proceeding before us. The facts in Ha's case were very different to the facts of the present case. Nevertheless, as Mr. Hill pointed out, referring to remarks by Gillard J in Ha's case, at paragraph 98, Mr. Danigelis has been punished through the criminal law system, incurred substantial legal costs and had his reputation tainted. Further, like the practitioner in Ha, there are at least aspects of Mr. Danigelis' conduct in the past that show a man who is intelligent and determined and is unlikely to put at risk what he has achieved.
We are mindful of the personal and financial pressure that Mr. Danigelis has experienced. It is true that the criminal proceeding was adjourned and the charges were finally dismissed, but we accept that the process has shamed and distressed him. We also accept that he has since attempted to rehabilitate himself. On the other hand, the admissions made in this proceeding came relatively late in the day, and we were concerned by a number of the statements made by Mr. Danigelis prior to the hearing and on his behalf at the hearing. For instance, we were concerned by his apparent desire to attribute responsibility for some of the improper dispensing to MP when, clearly, improper dispensing continued beyond the date of MP's death. We also regarded Mr. Dangelis' comments about the possibility of testosterone being dispensed for medical purposes as unsatisfactory, as we regarded the reasons he offered for what really was a multitude of unsafe instances of dispensing at MCFG. Towards the end of the hearing we sought some further and better explanation about that and something more about what he had subsequently done better to equip himself to discharge his professional responsibilities properly and prevent and recurrence of his misconduct. We were told in effect that Mr. Danigelis had allowed himself to become too busy to discharge his responsibilities properly and that the fact that he was not so busy now was the remedy. This is not satisfactory. The average daily number of dispensing instances at MCFG may have been high, although we do not consider the number to be so remarkable, and Mr. Danigelis may have spread his attention over more than one operation. That of course cannot relieve his obligations or be permitted to compromise patient or community health and safety.
While we broadly accept the submission by Mr. Hill that for a professional person the loss of standing and reputation is most significant, we consider that more is required. We have considered cancellation of registration but have decided that instead there should be a suspension. Although we understand the effect that the criminal and disciplinary proceeding has had on Mr. Danigelis, we consider that a greater rather than a lesser period of suspension is necessary. (We note that in Ha's case a suspension was considered unwarranted especially because the Court said that it could cause the practitioner's financial ruin. That practitioner still had his own business in operation. He was paying rent and he had a number of employees). Mr. Danigelis, still a relatively young man, potentially has many years ahead of him in his chosen profession. We have decided that the period of six months is appropriate, supported however by a further order.
The further order is that there be conditions imposed on Mr. Danigelis' registration. The conditions involve a programme of mentoring. The programme will be relatively intense at the time that it is to commence - prior to the expiry of the suspension. The programme will continue less intensively for a number of months after that time. The programme will be directed to ensuring that Mr. Danigelis is properly aware of his professional responsibilities, especially in relation to dispensing, and that he can recognise what he must do on a day to day basis to comply. The conditions also require that he provide monthly written reports to the Board concerning relevant features of his dispensing for the remainder of the calendar year in which the suspension ends. The detail of those conditions is set out in our order below.
Pursuant to section 101 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal orders that the evidence given before it and the contents of documents produced to it in this proceeding must not be published.
This order does not prohibit publication of this order and the Tribunal's reasons for decision.
The Tribunal determines that the respondent is guilty of professional misconduct and further determines that:
The remaining provisions of this order come into effect on 1 September 2010.
In March 2011 there shall be one session of not less than two hours' duration no later than 15 March and one further session of not less than two hours' duration no later than 31 March.
In each month from April 2011 to December 2011 there shall be one session of not less than one hour's duration per month.
The mentoring programme shall be directed towards (a) making the respondent aware of his professional obligations as a pharmacist under the HPR Act, the Code and the Guidelines (as referred to in the Tribunal's reasons for decision dated today), especially in relation to dispensing; (b) assisting the respondent to take satisfactory steps to ensure that he will comply with those obligations; and (c) prompting the respondent to identify any unusual practice issues that arise while he is working as a pharmacist and to discuss them with the mentor.
The mentor shall each month provide a brief written report to the Board as to the respondent's participation in the programme, outlining the areas covered and the respondent's engagement, understanding and general progress.
In the case of categories 1- 3 each report shall detail as many occasions as there may be but, in the case of categories 4 and 5, no more than five instances are required to be the subject of each report.
5. The respondent shall pay the Board's costs agreed at $25,500.00.
Pharmacy Board of Victoria
Danigelis