Bow v Chief Executive, Queensland Health [2010] QCAT 573

CITATION: Bow v Chief Executive, Queensland Health [2010] QCAT 573 PARTIES: Kylie Louise Bow v Chief Executive, Queensland Health APPLICATION NUMBER: GAR352-10 MATTER TYPE: General administrative review matters HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe DELIVERED ON: 11 November 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Queensland Health to cancel Ms Bow’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy is stayed until further order. 2. Both parties are granted leave to be legally represented in the proceeding. CATCHWORDS : STAY OF DECISION - PHARMACY – where Department cancelled endorsement to dispense PSE – whether stay would affect parties’ interests – whether stay is in public interest. LEGAL REPRESENTATION – whether complex question of law or fact Queensland Civil and Administrative Tribunal Act ss 22(4), 43 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 -- 1 of 5 -- 2 REASONS FOR DECISION 1. On 18 October 2010, Queensland Health cancelled Ms Bow’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy. Ms Bow has applied to review that decision. She has also applied for a stay of the decision. 2. Section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) allows the tribunal to stay the operation of a reviewable decision only if it considers the order is desirable after having regard to: a) The interests of any person whose interests may be affected by the making of the order or the order not being made; b) Any submission made by the decision-maker; c) The public interest. The interests of any person whose interests may be affected by the making of the order or the order not being made 3. Ms Bow says that not ordering a stay of Queensland Health’s decision will have a significant impact on her: a) Her husband works as an independent carpenter and earns a modest income. He is paid on a job-by-job basis. b) Her regular income is required to provide for her family, which includes a two year old child. c) Her employer has advised that, if the decision remains in place, her employment may be terminated. d) If her employment is terminated, Ms Bow may not be able to afford legal representation. 4. Queensland Health points out that Ms Bow has not provided any documentary evidence to support her assertion of financial hardship. That is a valid criticism. On 10 November 2010, Ms Bow filed submissions in response to Queensland Health’s assertions. The further submissions did not include any supporting evidence of financial hardship despite the fact that the issue had been raised. 5. Certainly the loss of one income is likely to cause any family financial difficulty but Ms Bow has not sufficiently demonstrated that the degree of financial difficulty will amount to financial hardship. 6. Queensland Health also points out that the decision does not affect Ms Bow’s ability to work as a pharmacist, merely her ability to dispense drugs containing PSE. It submits that only a small proportion of pharmacy sales involve the sale of drugs or poisons containing PSE and that the active ingredient PSE is now commonly replaced with phenylephrine (“PE”). -- 2 of 5 -- 3 7. Ms Bow’s assertion that she will be unemployed depends upon her employer making good a threat, which threat is made by a pharmacist who is under a similar impediment. The letter which is provided in support of the contention was written on the same day as Ms Bow filed her application for review. Coincidentally, that was also the day on which Ms Bow’s employer filed an application for review. I accept Queensland Health’s argument that the evidence to support Ms Bow’s employment may be terminated is not strong. 8. Queensland Health argues there is an impact on the regulator in staying the decision so soon after it was made and that the grant of a stay may undermine its authority and ability to regulate drugs and poisons in Queensland. QCAT has the power to grant a stay. The legitimate exercise of that discretion should not be seen as an adverse comment on the regulator’s authority. Any different view would effectively remove the tribunal’s power to grant a stay. It is unlikely that this was the intention of the legislation. Submissions made by the decision-maker 9. Queensland Health opposes the grant of a stay. a) The sale of PSE is regulated by the Health (Drugs and Poisons) Regulations. Pharmacists have to hold an endorsement to deal with PSE and can only dispense it if they are reasonably satisfied the customer has a need for it and they have obtained acceptable identification. b) PSE is an essential pre-cursor for the production of methamphetamine. c) Between 1 July 2008 and 28 October 2009, the pharmacy at which Ms Bow worked could not account for 2,324 items of PSE. Ms Bow’s employer has not provided any information to explain what happened to those items. d) Ms Bow worked in the pharmacy during the period under investigation and the Department is reasonably satisfied that Ms Bow could have dispensed PSE without accounting for it properly. 10. I have considered the notice of decision. Ground 1 refers to the purchase of PSE on specific dates. Queensland Health’s conclusion that Ms Bow was involved in the sale is based upon: a) That Queensland Health “understands” that Ms Bow works in the pharmacy on Thursdays. b) One of the purchases was made on a Thursday. 11. The relevant officer did not identify Ms Bow as the person who conducted the transaction. The officer cannot even say that he saw Ms Bow in the pharmacy at the time. 12. Queensland Health makes similar assumptions in ground 2: - that Ms Bow worked in the pharmacy over a certain period and that, given the volume of sales, she was “more than likely” involved in its sale. -- 3 of 5 -- 4 13. Ms Bow points out that she only works part time and did not work at the pharmacy for a significant portion of the time when the alleged infringements occurred. 14. Whether the assertions by Queensland Health will satisfy the evidentiary onus is a question for the tribunal at the hearing. It does seem to me, however, that Queensland Health’s submission that Ms Bow’s prospects of success are “low” might be unduly pessimistic. Public Interest 15. Queensland Health also submits that there is an unacceptable risk to the public. In broad terms, it details the journey from PSE to drug dependency, from a $10 packet of PSE to a highly lucrative drug trade. Queensland Health also points to: a) The potential harm to health practitioners treating patients who have taken methamphetamine as it is associated with a high degree of violence. b) Pharmacies who stock high levels of PSE are targeted for break and enter offences. c) The harm to the public from crimes committed to fund drug addiction. d) The volume of methamphetamine that could have been produced from the PSE that is unaccounted for is significant. 16. Ms Bow submits that: a) The pharmacy in question is the largest in the area, serving about 20,000 people. It is the only pharmacy that operates from 8.30 am to 9.00 pm. b) Judge Kingham has recognised that Mackay is an area of need for the provision of medical services.1 c) Queensland Health commenced its investigation in October 2009. although it had the power to do so, it did not impose an urgent suspension or cancellation. d) There is no risk to the public in allowing Ms Bow to continue dispensing PSE. 17. Queensland Health has submitted no evidence of the potential harm to the public. Although I may take notice of events and information commonly in the public domain when making a decision, there has been little attempt to demonstrate a particular risk that attaches to Ms Bow and there has been no attempt to demonstrate that the risk attaches to Ms Bow’s future dealings with PSE. The risks enumerated by Queensland Health will occur, or not, in relation to the PSE that is already unaccounted for and do not really address the issues raised on the stay application. 1 Saini v Medical Board of Australia [2010] QCAT 515 -- 4 of 5 -- 5 18. Ms Bow has overstated the potential harm to the public in refusing to grant a stay. The public will still have access to the pharmacy, they will still be able to buy drugs to alleviate the symptoms of colds and flu and they will be able to buy drugs containing PSE, albeit in other pharmacies and, perhaps, at less convenient times. 19. I also note that Ms Bow’s submissions acknowledge the salutary effect of the decision, as Senior Member Oliver identified in Craddock v Chief Executive, Department of Transport and Main Roads2. Application for legal representation 20. Queensland Health has sought leave for legal representation but has not favoured the tribunal with any submissions in that regard. 21. Section 43 of the QCAT Act sets out the matters to which I can give consideration. It is clear to me that this proceeding involves complex questions of law, not least of which is the standard of proof required to enable the tribunal to reach a decision. Conclusion 22. I am mindful of Queensland Health’s opposition but I consider it appropriate to grant a stay because: a) While there is little evidence that Ms Bow’s interests will be adversely affected, there is some potential she will suffer financial hardship. b) The public harm asserted by Queensland Health is harm that may have already occurred in respect of PSE that has already been dispensed. It is, with respect, mere speculation particularly as Ms Bow, through her submissions, has accepted the warning that the Queensland Health decision represents. c) As to her future conduct, Ms Bow has acknowledged the warning given to her by the decision under review. d) Ms Bow only works in the pharmacy one day per week. e) The balance of convenience favours the granting of a stay. 23. I order: a) The decision of Queensland Health to cancel Ms Bow’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy is stayed until further order. b) Both parties are granted leave to be legally represented in the proceeding. 2 [2010] QCAT 229 -- 5 of 5 --