The way pharmacists have been regulated, the punishments they experienced and the types of offences involved have changed over time. David Newgreen reports on his survey of reported prosecutions of Victorian pharmacists over more than a century
Pharmacists are subject to much detailed professional regulation that is administered by state departments of health, the Therapeutic Goods Administration, Medicare, the Australian Health Practitioner Regulation Agency (AHPRA), state pharmacy registering authorities and, to a lesser extent, municipal councils and the police.
Compared with the past, prosecutions of pharmacists are now infrequently reported. Charges usually concern failure to notify instances of the prescription of unusually large quantities of drugs, the unauthorised self-administration of drugs and the deliberate falsification of records.
Minor breaches, of themselves, do not seem to be pursued in the courts at present. Possible reasons for a decline in the number of cases are a greater awareness of, and application by pharmacists of the many laws directly affecting them; an absence of victims; the reluctance by government departments to launch prosecutions due to legal costs (and the possibility of losing); and a trend to referring essentially criminal offences directly to AHPRA to be dealt with as cases of unprofessional conduct or professional misconduct.
The Board was responsible for the registration of pharmaceutical chemists under the Pharmacy Act 1876, which was later subsumed by the Medical Act 1890 and its successors. In the early days, the Board prosecuted people who held themselves out as pharmaceutical chemists or who were carrying on business as a chemist and druggist when they were not registered. Registered pharmacists who were not in attendance when their premises were open to the public were also prosecuted.
The Board also administered a succession of poisons acts from 1877 to 1963. It prosecuted hundreds of non-pharmacists who were not licensed by the Board for offences such as selling therapeutic and other poisons and for labelling and packaging deficiencies; for example, in 1929, the Board prosecuted nearly 90 storekeepers for contraventions of the Poisons Act 1915.2 Pharmacists were also prosecuted by the Board and, notably in the 1950s and early 1960s, by the police.
The various periods and the prosecutions reflect the conditions of the times. The 19th century was one of laissez- faire economics where government intervention was seen as interfering with a right to trade in whatever goods and services a person wished. The absence of reliable contraceptive methods and the high cost of illegal medically-performed abortions drove people to chemists with a view to obtaining ergot-based medicines to stimulate uterine contractions.
Other factors affecting the decision to prosecute were the costs and the attitude of lower courts that imposed minimal fines and were critical of the Board for launching an action.
There is no known comprehensive record of pharmacist prosecutions. Data for this survey were drawn from the Board’s annual reports and handwritten lists, case reports in The Australasian Journal of Pharmacy (AJP), The Chemist and Druggist of Australasia (CDA). The two journals began publication in 1886, with the latter ceasing in 1934.
Not all cases in the Board’s lists of prosecutions were mentioned in the journals and vice-versa and the figures in the annual reports did not always agree with the Board’s lists or the journals. A further complication was that the annual reports listed individual charges rather than persons, as one person may have faced more than one charge. Unreported cases are a limitation of the survey.
Examination of newspaper reports in the National Library of Australia’s Trove database revealed prosecutions of pharmacists that had not been included in the journals, especially those that did not relate to professional activities, such as indecency and traffic offences.
The names of the defendants in the journals and the Board’s lists were compared to exclude double counting. Charges that were withdrawn or dismissed or where the defendant was acquitted are excluded from the table. The survey also excludes Board Inquiries that had not been preceded by a prosecution.
The table shows the number of pharmacists, rather than the number of individual charges laid at any one time. Offences against the poisons and pharmacy/medical acts were the most common.
EXAMPLES OF OFFENCES
Includes several who were eligible for registration; manslaughter/abortion.
Excise offences; riding a bicycle on a footpath; practising as a vet; abortion.
Larceny; bigamy; abortion; late trading; using insulting words; labelling
Incorrect packaging; sub-standard ingredients; late trading; manufacturing explosives; unsanitary boat; sales of prescription-only drugs.
Illegal sales of cocaine, ergot, poisoned wheat, sly grog, cyanide, tonic wine; counterfeiting currency; late trading (42%); bigamy; unqualified supervision.
Illegal sales of cocaine, ergot, morphine; practising medicine; late trading (37%); unqualified supervision; record keeping; negligent driving; labelling.
Illegal sales of cocaine, sulphonamides, amphetamines, barbiturates, liquor; abortion; labelling; unqualified supervision; possessing stolen petrol; late trading.
Dangerous drugs records and storage (64%); illegal sale of barbiturates, ergot, methadone, sulphonamides, penicillin; unqualified supervision; display of contraceptives; pharmaceutical benefits fraud.
Dangerous drugs records and storage (25%); unqualified supervision; illegal sale of amphetamines, antibiotics, barbiturates; practising optometry; inadequate equipment and reference books.
Table. Recorded prosecutions of pharmacists in Victoria from 1877 to 1966
Late 19th century
As part of the negotiations leading up to the passage of the Pharmacy Bill in 1876, a clause was included that prevented the Board from examining students “in the theory and practice of medicine surgery or midwifery”, and registered pharmaceutical chemists and their employees who prescribed or practised medicine or surgery could only do so in accordance with “any rights and privileges hitherto enjoyed by chemists and druggists in their open shops”.
The restrictive legislative provisions may explain why there had been little emphasis on the teaching of pharmacology in pharmacy courses for so many years. The Pharmacists Act 1974 removed all reference to them.
In this period, charges were brought against chemists for acting as apothecaries. A city pharmacist was subject to proceedings by the Victorian Branch of the British Medical Association after he sold a bottle of medicine and a box of pills for £1/5/- to a man who described the symptoms of a “lady friend”. The pharmacist had advertised: “A real boon—ladies requiring [an] absolute certain remedy [for] all irregularities and obstructions, consult [a] duly qualified chemist”. The court found the charge proven, and a fine of £5 was imposed, with £7/7/- costs, in default distress, or one month’s imprisonment.
In the first 12 years of the Acts’ operation, breach of the Pharmacy Act 1876 was the most common reason why pharmacists were prosecuted and this continued for the rest of the 19th century although proportionally less, probably because the registration regime had become established.
Reported prosecutions were for a variety of offences ranging from the unlicensed sale of fireworks and riding a bicycle on a footpath to selling an internationally notorious arsenical called Rough on Rats without making an entry in the Sale of Poisons Register. There were many suicides and accidental poisonings with this product.
Charges of abortion, either by instrument or supply of drugs resulted in imprisonment and deregistration for three chemists. When a woman died as a result of an abortion, William Paul Green was sentenced to death for murder but the sentence was commuted to 10 years’ hard labour and his name was struck from the register.8-10
1900 to 1919
With the turn of the century, the few prosecutions that were recorded included bigamy, abortion and labelling deficiencies but no pattern emerges in the first decade when the Board appears to have been preoccupied with litigation against the friendly societies and this may have dissuaded it from pursuing others. In the second decade, late trading offences started to appear. Charges were brought against pharmacists for selling ergot which, although capable of supply without a prescription, had to be labelled correctly and an entry made in the Sale of Poisons Register.
Products such as Parke Davis’s Emmenagogue Pills containing ergot, aloes, ferrous sulphate and savin oil were ostensibly for menstrual disorders but they were used as abortifacients. Ergot became a “specified drug” or prescription-only medicine in 1922.10
A doctor and a Ballarat pharmacist were committed for trial for manslaughter in 1915 following an alleged dispensing error where strychnine hydrochloride solution was supplied instead of a dilute mixture. The pharmacist and the doctor were acquitted because the doctor had written an order as opposed to a prescription for a particular person and the dispenser thought that the doctor was ordering the solution for his own stock as doctors often did their own dispensing in those days.11
After the First World War, pharmacists faced charges of treating venereal diseases contrary to the Venereal Diseases Act 1916. The Act limited treatment to medical practitioners, irrespective of whether a substance was included in a poisons schedule. A notable case was that of William Westbury who used to lecture on the subject at the Yarra Bank—Melbourne’s equivalent to Speakers’ Corner in Hyde Park, London. After attending one of Westbury’s lectures, a returned soldier came to Westbury’s shop and was given a bottle of medicine priced at £6—a very significant sum at the time. Westbury was fined £15 with costs of £6/3/6.12
Incredibly, a pharmacist sold Lysol (Cresol and Soap Solution) in a whisky flask and another, a fluid ounce (30 mL) of hydrochloric acid (35%) in a clear bottle, instead of the regulation poison containers. Each was prosecuted.
The second decade also saw the first of numerous court appearances from 1916 to 1942 by Thomas Archibald Harris Ready, sometimes as a victim but more often as a defendant. His initials, with small variation, live on as Thar’s Ointment. He was repeatedly prosecuted and convicted for late trading. Ready was deregistered twice by the Pharmacy Board following the illegal sale of cocaine and later, as an accessory before the fact in an abortion case which sent him to prison.
Barbiturates were made prescription-only in 1913. In 1918, a suburban chemist was charged with selling them. His defence was that he sold the powders as a “remedy for the drink habit and could see no harm in selling them for that purpose”. The court regarded the excuse as “absurd” and imposed a fine.13
The second and third decades showed an increase in the number of recorded prosecutions with late trading prominent.
1920 to 1929
After the War, addiction to cocaine was a world-wide problem and many chemists were prosecuted for selling it without a prescription and for associated labelling and recording deficiencies. There was criticism of the police who used agents dressed in military uniforms and for using a vaudeville actor to persuade chemists to sell them cocaine.
A notable case was that brought in 1925 against Xavier Herbert—later to achieve fame as a novelist—who treated the public privately at his pharmacy in contravention of the Medical Act 1915 and went beyond the “rights and privileges”.14 He was fined £5 with £2/4/6 costs.
The “rights and privileges” of pharmaceutical chemists remained vague until 1927 when the Board determined that they were:
- To attend and advise patients in their open shops pharmacies in ailments of common occurrence and judge of their complaints by the symptoms.
- To prescribe medical as distinguished from surgical treatment for such patients.
- To supply, and if necessary, compound the medicines so prescribed.
- To administer an antidote in cases of acute poisoning and to apply first-aid in cases of accident or injury.
These rights and privileges were enjoyed in open pharmacies. Patients were not visited at their homes or elsewhere.15
Because of the restricted hours allowed for the sale of alcohol, recourse was made to the purchase of “tonic wine” (about 15% alcohol) and pharmacists were charged with selling it after hours and for being unlicensed to sell intoxicating liquor. Prosecutions under the Factories and Shops Act for trading after 6pm increased in this and the next decade.
1930 to 1939
Late trading accounted for about 40 per cent of prosecutions with convictions often recorded. In its Annual Report for 1937, the Board’s policy in relation to the policing of the Poisons Act and Regulations was educational, rather than punitive; the inspectors explaining the legal requirements, and warning persons who committed minor breaches.
1940 to 1949
The Board continued with the policy of refraining from launching prosecutions for minor breaches of the regulations but unlawful supply of amphetamines, sulphonamides and barbiturates resulted in legal proceedings. New offences connected to the war effort were the manufacture of nail lacquer, possession of stolen petrol, the use of mineral oil, and receiving stolen goods from the army.
1950s and 1960s
In the 1950s, prosecutions increased and the Board’s previous policy was overturned mainly because the newly-formed police drug squad carried out systematic visits to pharmacies and prosecuted vigorously.
Most of the offences centred on inaccuracy in records and failure to store dangerous drugs in a dedicated locked cupboard. Fines varied from £1 to £10, with costs often exceeding the fine. Convictions were recorded. By comparison, there were only a few instances where medical practitioners were prosecuted for similar offences—pharmacists were clearly a soft target.16 There were also cases of illegal supply, not only of dangerous drugs, notably Synthanal (methadone) but also barbiturates and amphetamines.
Pharmacy organisations were incensed by the police action in relation to clerical offences and a government member said in Parliament that members of the drug bureau “made the lives of chemists a misery and launched prosecutions for technical breaches”. Police action diminished from the early 1960s.
In a 1960 case, a pharmacist was charged with practising medicine and prescribing medicine contrary to the Medical Act 1958 and for unlawful supply of drugs and recording offences. The substance of the former charges centred on treating a person—a policewoman—in a cubicle in the shop. The defendant was found not guilty of these but fined for the drug offences.18 The attitude of the day with its emphasis on “open shop” is in contrast to the present when private consulting rooms are de rigeur.
Over the remainder of the 20th century, record keeping improved. Security was also increased in response to the widespread misuse of drugs from the late 1960s.
The present day
Recent years have shown that the standards of record keeping and storage of Schedule 8 drugs have deteriorated markedly. Possible reasons are the greatly increased prescribing and dispensing of S8 drugs, heavy workloads, a wider range of products and bulky packaging, inadequate storage capacity and in the case of computerised registers, lack of familiarity with the software. The NSW Pharmacy Council noted: “Complaints involving storage and management of Schedule 8 drugs are of continuing concern. Many of these issues could be avoided with the purchase of a bigger safe”.
The Victorian Pharmacy Authority (VPA) stated: “It is disappointing that serious deficiencies in the recording and storage of Schedule 8 (S8) poisons continue to feature regularly in VPA inspections. In such cases, the Authority continues to routinely refer licensees to a panel convened under section 57 of the Pharmacy Regulation Act 2010”.
It remains to be seen whether the Department of Health will prosecute such offences as the present “light touch” has had little success.
See this article in the July AJP magazine for a full list of references
David B Newgreen BPharm, MBA, FPS was formerly with the Victorian Pharmacy Authority, the Pharmacy Board of Victoria and the Department of Health.
He lectured in forensic pharmacy at Monash and La Trobe universities and was president of the PSA (Victorian Branch)