A pharmacist proprietor has successfully appealed a decision that saw him struck off the register after being labelled “unfit” to practise pharmacy
A judge has found that a tribunal erred in concluding a pharmacist proprietor was not competent to practise in the profession, sending the matter back to be re-heard.
The State Administrative Tribunal of WA initially found the 44-year-old pharmacist had engaged in “professional misconduct” in a decision delivered in August.
The pharmacist, who owns two pharmacy businesses in Perth, admitted to professional misconduct in relation to his dispensing practices between 1 January 2008 and 30 April 2009.
During this time, he dispensed anabolic androgenic steroids in the form of Sustanon, Deca-Durabolin, stanozolol, oxandrolone, methandrostenolone and oxymetholone to patients, in quantities and combinations which he ought to have known were not necessary for any therapeutic purpose and were likely to constitute an unacceptable hazard.
At times, he was dispensing anabolic steroids to patients at a dosage rate of up to 14.8 times the recommended maximum rate for any therapeutic purpose. He was found to have dispensed steroids more than 4700 times to 828 patients in just over one year.
On reviewing the pharmacist’s displayed understanding of his dispensing responsibilities, his approach to CMIs and alleged lack of insight into the risks of diversion, the Tribunal found the pharmacist was incompetent and therefore “permanently or indefinitely unfit for the practice of pharmacy”.
Based on this finding, the Tribunal cancelled his registration for at least three years. He was also reprimanded.
However in a recent appeal before the Supreme Court of Western Australia, Chief Justice Peter Quinlan found the Tribunal’s conclusions on competency were “not supported by the evidence as a whole”.
“In my view the Tribunal materially erred in concluding that [the respondent] was not a competent pharmacist and that he was ‘permanently or indefinitely’ unfit for the practice of pharmacy,” he said.
For example, he said the Tribunal’s conclusions as to the pharmacist’s understanding of his dispensing responsibilities were based entirely on answers he gave during re-examination.
“[The pharmacist] may well have been, as the Tribunal found, a poor witness and ‘guarded and defensive’ in his answers,” the Supreme Court judge found.
“In the context of his evidence as a whole, however, the Tribunal’s assessment of his answers in re-examination did not provide a proper basis for the conclusion that ‘he is not currently a competent pharmacist in terms of his dispensing’.”
The Tribunal had also decided the pharmacist’s preparation of Consumer Medical Information (CMI) sheets raised further competency issues. However Chief Justice Quinlan found “there was no proper basis, grounded in the evidence, to find that the CMIs were ‘fundamentally deficient, even hazardous’.
“On the face of the transcript, this exchange [during cross-examination] does appear to suggest that there were a number of significant ‘missing’ side-effects in the CMI for Stanozolol. That is, until one looks at the CMI itself,” he said.
The judge found risk of liver damage or hepatic toxicity was not missing from the CMI for Stanozolol that had been handed out to patients, nor were a number of other serious side effects.
Chief Justice Quinlan said the Tribunal’s findings as to competency were a central consideration in reaching the conclusion as to penalty that it did, in particular that the pharmacist’s registration should be cancelled rather than suspended.
He decided the matter should be sent back to the Tribunal to be heard and determined according to law, by the Tribunal differently constituted. He said there should be orders granting leave to appeal and allowing the appeal.
Chief Justice Quinlan added that in his preliminary view, it was appropriate to set aside not only the orders cancelling the pharmacist’s registration and order disqualifying him from applying to re‑register, but also the order that he be reprimanded.
The judge is awaiting to hear the parties as to the final form of orders, including costs.
In a separate case arguing for a stay of the cancellation of his registration, the pharmacist said cancellation would cause financial harm to him and also have an immediate and significant effect on the staff, the community and the provision of healthcare services in the areas in which his two pharmacies are located.