Barker v Queensland Health Department [2016] QCAT 230

CITATION: Barker v Queensland Health Department [2016] QCAT 230 PARTIES: Shelley Jane Barker (Applicant) v Queensland Health Department (Respondent) APPLICATION NUMBER: OCR099-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon JB Thomas, Judicial Member DELIVERED ON: 15 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. It is determined that by reason of conduct between April 2013 and January 2014, the applicant Shelley Jane Barker became no longer suitable under sections 64 and 171 of the Health (Drugs & Poisons) Regulation 1996 (Qld) to obtain, prescribe, dispense, sell, possess or otherwise deal with any controlled drugs falling within schedule 8 of the Poisons Standard 2013 (‘SUSMP’) and any restricted drugs within schedule 4 of the SUSMP defined as restricted drugs of dependency under appendix 8 of the Regulation; 2. The endorsements of Shelley Jane Barker under sections 64 and 171 of the Health (Drugs & Poisons) Regulation 1996 (Qld) to obtain, prescribe, dispense, sell, possess or otherwise deal with all controlled drugs falling within schedule 8 of the Poisons Standard 2013 (‘SUSMP’) and restricted drugs within schedule 4 of the SUSMP defined as restricted drugs of -- 1 of 9 -- 2 dependency under appendix 8 of the Regulation are cancelled as from 8 April 2014. 3. Under section 24(5)(b) of the said regulation Shelley Jane Barker is notified that she may not apply in writing to have the decision to cancel those endorsements repealed before 8 April 2016. CATCHWORDS: OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – PHARMACIST DISCIPLINARY – Health (Drugs and Poisons) Regulation 1996 (Qld) –pharmacist obtained controlled drugs for husband and falsified records – cancellation of endorsement (licence) to deal with certain controlled and restricted drugs – review of decision of Chief Executive – appropriate level of sanction Health (Drugs & Poisons) Regulation 1996 (Qld) ss 24(5)(b), 64, 171 Poisons Standard 2013 sch 4, 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 21, 32 Aldrich v Ross [2001] 2 Qd R 235 Pharmacy Board of Australia v Chan [2013] QCAT 255 Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26 Pharmacy Board of Australia v Chung [2012] QCAT 483 Pharmacy Board of Australia v Heron [2011] QCAT 424 Pharmacy Board of Australia v Kham [2012] VCAT 1316 Pharmacy Board of Australia v Kinsey [2012] QCAT 359 Pharmacy Board of Australia v Huynh [2013] QCAT 42 APPEARANCES & REPRESENTATIONS: APPLICANT: Ms O K Perkiss RESPONDENT: M T Hickey -- 2 of 9 -- 3 This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). REASONS FOR DECISION Jurisdiction and applicable law [1] This is a review of a decision of the delegate of the Chief Executive of the Queensland Health Department. The review is authorised by the Health (Drugs and Poisons) Regulation 1996 (Qld) (“the HDP Regulation”). [2] The decision, made under section 23 of the HDP Regulation determined that the applicant pharmacist was no longer suitable to hold endorsement for schedule 8 controlled drugs and schedule 4 restricted drugs of dependency. The decision precluded her from applying to have the cancellation repealed at any time before 8 April 2017. [3] The applicant pharmacist seeks a review by QCAT under section 33 of the HDP Regulation. [4] This review is governed by the “Review Jurisdiction” provisions of the QCAT Act, namely sections 17-24. In conducting the review this Tribunal has all the functions of the decision maker for the reviewable decision. The purpose of the review is “to produce the correct and preferable decision”, and the procedure is by way of a fresh hearing on the merits.1 [5] To facilitate the practice of pharmacy a pharmacist is authorised under section 64 of the HDP Regulation to obtain, dispense or sell a controlled drug, and by section 171 of that Regulation to obtain, dispense or sell a restricted drug. Such authorisations stem from the practitioner's endorsement on the register referred to in the HDP regulation. [6] Strict procedures and controls are imposed upon pharmacists in their dealings with such drugs. Breach of such requirements may lead to a disciplinary enquiry by the Chief Executive. [7] One of the specified grounds for suspension or cancellation of a pharmacist's endorsement is that “the holder of the endorsement is not a suitable person to hold the endorsement”.2 [8] Section 15 of the HDP Regulation mentions relevant considerations for the Chief Executive. These include general factors such as the practitioner's qualifications, experience, character and standing, prior convictions and knowledge and understanding of their obligations. 1 QCAT Act ss 19, 20. 2 HDP Regulation s 23(b). -- 3 of 9 -- 4 Facts and circumstances [9] The applicant pharmacist obtained her qualification from the University of Queensland in 1992, and practised full time until 2004, and thereafter part time or as a locum until March 2014. [10] The conduct giving rise to the present proceedings was her provision of pain relief drugs to her husband in the months between April 2013 and January 2014. The drugs which she provided were Oxycontin and Endone. [11] The drugs were obtained from the pharmacy at which she worked in Kawana, and false entries were made in the books in an attempt to avoid detection of her irregular and unauthorised dealing with the drugs. [12] The use of the drugs by her husband was not prescribed or supervised by a medical practitioner. [13] Her husband is a builder and they have two children aged 11 and 8. [14] In May 2013, her husband underwent a left shoulder reconstruction operation to repair a torn tendon. His medication did not sufficiently control his pain, and, in his words, "she gave me some tablets to help". The tablets variously contained Oxycontin an Endone. In the event, her husband appears to have suffered no ill effects from the unauthorised prescription of the pain relieving drugs. He confirms that his need for pain relief gradually abated and eventually he stopped taking the tablets when he no longer needed them. He has had no further issues with his shoulder and his need for such medication ceased over two years ago. [15] When taxed with her conduct (around March 2014) she immediately admitted it and displayed remorse which is, in the present case, accepted as genuine. [16] The following circumstances are conceded by the respondent Health Department – (1) Ms Barker obtained the controlled drugs on each occasion for the sole use by her spouse for his chronic shoulder pain. (2) Ms Barker reflected that her actions were misguided and she recognised the potential harm from her actions. (3) Ms Barker acknowledged her misconduct and asserted that it would not reoccur. (4) Ms Barker complied with a voluntary undertaking to immediately cease work as a pharmacist until a decision had been made on her endorsements; and -- 4 of 9 -- 5 (5) Ms Barker had never previously been subjected to professional discipline and had maintained high ethical standards.3 [17] The unsuccessful attempts to conceal the unauthorised dispensation of the drugs entailed at least 17 separate false entries in the controlled drugs book, and corresponding electronic "dispense records" with copy prescriptions and repeat authorisations purporting to indicate that lawful prescriptions had been made.4 [18] On 7 March 2014, Ms Barker undertook to withdraw from practice until a decision was made about her conduct and her endorsements. She has not practised as a pharmacist since that date. [19] Her current activity involves volunteer work to provide learning support for students with reading difficulties, and her husband confirms that she is no longer a contributor to the family finances. [20] A determination was made by the respondent in any event (on 8 April 2014) to cancel the applicant’s endorsement for drugs within schedule 4 and schedule 8 of the Standard for the Uniform Scheduling of Medicine and Poisons (SUSMP). Application to repeal the cancellation was prohibited at any time before 8 April 2017. [21] The Department amended that decision on 18 November 2015 by confining the prohibition in relation to schedule 4 drugs to drugs of dependency that are listed within appendix 8 of the SUSMP. However the period of prohibition of application for restoration of endorsements remained the same. [22] That is the current order that is in force. It is common ground that the present review relates to the later determination of 18 November 2015. Issue [23] The parties are agreed that the main issue for determination by this Tribunal is whether the date nominated under section 24(5)(b) of the HDP Regulation is appropriate. The effect of the order was suspension of endorsements to obtain, dispense or sell specified restricted and controlled drugs for three years. [24] To assist in answering that question the parties have referred to some previous decisions in disciplinary matters involving pharmacists. It is desirable if possible to maintain some degree of consistency in such determinations. 3 Notice of decision dated 8 April 2014, paragraph 18; Submissions on behalf of the respondent, filed 26 February 2016, paragraph 2.6. 4 Submissions on behalf of the Respondent, filed 26 February 2016, paragraphs 4.12 and 4.13. -- 5 of 9 -- 6 Discussion [25] The applicant pharmacist had been registered, without incident, for 20 years when she made a serious error of professional judgment. She has expressed deep remorse, shame and regret for her actions. [26] On the other hand, she flouted a very important basic discipline that is required of pharmacists. [27] There is no doubt that cancellation of the relevant endorsements imposes a serious economic burden on this respondent. The observance of her voluntary undertaking not to practise at all has perhaps involved an even greater burden up to the present time, but little turns on this. [28] So far as any cancellation for a future period is concerned, it is true that there is some residual earning capacity in a pharmacist subject to such restrictions, and that such a person may still work as a “pharmacist”. But in this present case, I accept that she would have "no ability to work as a pharmacist in most, if not all, retail pharmacy environments." and that "it would be almost impossible for her to find work without these endorsements. This is because the vast majority of work that a pharmacist does is dispensing, supplying and advising on schedule 4 and 8 drugs".5 [29] The affidavit of Mr Tauman supports the view that a serious economic burden is imposed on the respondent by reason of the cancellation, that it has now been in force for approximately 2 years, and that any further extension of it would extend the burden. [30] She has maintained her continuing professional development (“CPD”) obligations and has undertaken to complete, upon her return to practice, further studies in ethics and dispensing in pharmacy practice. [31] The prospect of recurrence of such conduct now seems remote. [32] A number of cases were cited of disciplinary proceedings where Tribunals have imposed conditions or suspended or cancelled a pharmacist’s registration.6 [33] In relation to Heron’s case, it is difficult to tell whether the pharmacist's misconduct was more or less serious than that of the present applicant. He dispensed medications involving pseudoephedrine to various customers over a period of 22 months. His professional failing was said to be “substantial and over a lengthy period". He was dealt with by a very short period of suspension (3 months) which was itself suspended for 12 months. 5 Affidavit of Mr Tauman, paragraph 7. 6 Pharmacy Board of Australia v Heron [2011] QCAT 424 (‘Heron’); Pharmacy Board of Australia v Kinsey [2012] QCAT 359 (‘Kinsey’); Pharmacy Board of Australia v Chung [2012] QCAT 483 (‘Chung’); Pharmacy Board of Australia v Chan [2013] QCAT 255 (‘Chan’); Pharmacy Board of Australia v Kham (Occupational and business regulation) [2012] VCAT 1316, 29 August 2012 (‘Kham’); Pharmacy Board of Australia v Huynh [2013] QCAT 42 (‘Huynh’); Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26 (‘Chrenowski;). -- 6 of 9 -- 7 The burden of his order was that he should complete a course of ethical decision making during that period. On any view it shows a substantially more lenient approach than the present sanction. [34] Kinsey’s case concerned his failure to comply over a period of 2 years with proper recording of his supply of products contained PSE. In the result he lost his endorsement to dispense products containing PSE for about 10 days, he was reprimanded and prohibited for applying for reinstatement of his unrestricted endorsement for 12 months. In broad terms, Kinsey was reprimanded and a restriction (of quite limited ambit) was imposed for about 12 months. [35] Both Chung and Chan likewise failed to comply with the rules and requirements of a pharmacist concerning supply of pseudoephedrine, and each suffered a restriction on their endorsement for a period of 12 months concerning the dispensation of that drug. Chan also was required to complete a specified course. [36] The Victorian decision of Kham was far more serious than the present matter. He unlawfully trafficked pseudoephedrine on a number of occasions and was charged and convicted of a criminal offence. He also falsified records. His registration was fully cancelled and he was disqualified from reapplying for 12 months. [37] Similarly, Huynh suffered 12 months loss of registration as the result of criminal activity in the production of a dangerous drug. He was sentenced to imprisonment for 2 years, but suspended after having served 6 months. In effect he had incurred 6 years suspension from practice before he was dealt with, and the Tribunal prohibited him from applying for reregistration for a further 12 months. [38] Chrenowski took drugs of dependence from various employers and consumed them. He misled investigators throughout the disciplinary process and failed to comply with conditions. He suffered from “substance abuse issues”. That circumstance in my view must be regarded as two- edged in the context of determining whether someone is an appropriate person to be held out as fit and proper for registration. He was disqualified for 3 years. [39] One submission on behalf of the Department contained an assertion that “the period [of suspension] in this case was, however, reduced from the 5 year cancellation period that the respondent commonly imposes in cases involving the misuse of controlled drugs.” 7 This is not persuasive or helpful in the absence of particulars of comparable decisions that might reveal a tariff that seems reasonable, or in the absence of particulars to justify the assertion. The generality of “cases involving the misuse of controlled drugs” is enormous. I therefore indicate that the decided cases to which reference has been made must be my main guide. 7 Submission on behalf of the respondent filed 26 February 2016, paragraph 4.2. -- 7 of 9 -- 8 [40] This is not an appeal against the original decision. My duty is to attempt “to produce the correct and preferable decision”.8 In determining a sanction, considerable respect is given to the use of the decision maker, but the ultimate decision must be that of this Tribunal.9 [41] Relevant factors in the present case include: a) the importance of the rules that were broken and the need for deterrence of others from like conduct; b) the apparent "one off" nature of the aberrant conduct, involving a misguided attempt to help her spouse, albeit over an extended period; c) the otherwise good character and fitness of the practitioner; and d) her response to the investigation, and what seems to be the unlikelihood of recurrence. [42] Taking all matters into account I consider that the appropriate response for the conduct revealed in this case is a restriction concerning the same drugs as already imposed i.e. on the dispensation etc of schedule 8 controlled drugs and schedule 4 restricted drugs of dependency. But having regard to the precedents that have been cited, I do not think that it should be for any greater period than two years. [43] It is noted that that period has already expired. The applicant pharmacist has been subjected to a fairly wide suspension of endorsements for two years, with a contemporaneous voluntary suspension from the practice of pharmacy for that period. [44] It is important that a period be fixed which can be seen to bear some proportion to the gravity of the impugned conduct. The details recorded in the registration records will confirm this disciplinary response for future reference, even though that period has already expired. Two years seems appropriate. Orders [45] It will be ordered that: (1) it is determined that by reason of conduct between April 2013 and January 2014 the applicant Shelley Jane Barker became no longer suitable under sections 64 & 171 of the Health (Drugs & Poisons) Regulation 1996 (Qld) to obtain, prescribe, dispense, sell, possess or otherwise deal with any controlled drugs falling within schedule 8 of the Poisons Standard 2013 (SUSMP) and any restricted drugs within schedule 4 of the SUSMP defined as restricted drugs of dependency under appendix 8 of the Regulation; 8 QCAT Act ss 19-20. 9 Aldrich v Ross [2001] 2 Qd R 235, 258. -- 8 of 9 -- 9 (2) The endorsements of Shelley Jane Barker under sections 64 and 171 of the Health (Drugs & Poisons) Regulation 1996 (Qld) to obtain, prescribe, dispense, sell, possess or otherwise deal with all controlled drugs falling within schedule 8 of the Poisons Standard 2013 (SUSMP) and restricted drugs within schedule 4 of the SUSMP defined as restricted drugs of dependency under appendix 8 of the Regulation are cancelled as from 8 April 2014. (3) Under section 24(5)(b) of the said Regulation Shelley Jane Barker is notified that she may not apply in writing to have the decision to cancel those endorsements repealed before 8 April 2016. -- 9 of 9 --