Pharmacist loses 3-year defamation court battle

A WA pharmacist has lost Federal Court proceedings against AHPRA and the Pharmacy Board, in which he claimed they had published defamatory statements about him

The pharmacist had been convicted with six offences after the WA Department of Health conducted an audit of his pharmacy premises in 2011.

These offences included failure to maintain the register regarding the dispensing of oxycodone and fentanyl patches, failure to make an inventory of drugs of addiction, and failure to keep the safe containing Schedule 8 drugs locked.

On 23 January 2013, the pharmacist pleaded not guilty to the charges, was fined $14,000 (later reduced to $10,000) and ordered to pay costs of $2,500.

His authority to manufacture, possess, sell or supply Schedule 8 drugs was revoked, and though he contested this in court, his appeal was dismissed.

After an investigation by AHPRA, conditions were also imposed by the notification committee of the Pharmacy Board of Australia and recorded in the national register.

The conditions were recorded and published on 16 December 2013, the first of which was that:

[The pharmacist] is prohibited from taking or self administering Schedule 8 drugs, save for those that may be legally prescribed for him.

The pharmacist contacted AHPRA stating that he believed this condition placed on his record was “particularly provocative and insensitive”.

“The harm caused has totally ruined me and I do not understand what the real motive is behind this condition other than to cause irreparable harm and character assassination on a world scale”, he wrote in a letter on 22 August 2014.

On 27 November 2014, the pharmacist commenced proceedings against the Pharmacy Board and AHPRA seeking the removal of the conditions imposed by the Board; damages based upon an alleged contravention of the Australian Consumer Law; and damages for defamation and malicious falsehood including “damages for lost earnings” and “loss of reputation”.

In July 2015, after consulting with the pharmacist, the Board voluntarily removed the first condition, and AHPRA removed it from its website.

An ongoing saga, these proceedings had originally been dismissed in late 2016; however they have continued for more than a year after this, with the latest judgment handed down on 17 April 2018.

The pharmacist argued in court that the publication of the first condition had had a negative impact on his ability to find jobs.

However Federal Court Judge, Justice Antony Siopis did not find that any of the rejected job applications were in any way the result of a potential employer reading the first condition on his AHPRA registration and forming the view that he was addicted or had been otherwise abusing to Schedule 8 drugs.

While the pharmacist had unsuccessfully applied for numerous pharmacist and pharmaceutical sales representatives roles, it would have been necessary for the pharmacist to prove he did not obtain an employment position by reason of the presence of the first condition on his registration, rather than the presence of the conditions taken together.

He had also applied for several chief executive positions including the position of CEO of the Northern Territory News in Darwin, and CEO of the Richmond Shire Council in Queensland.

Justice Siopis did find that the pharmacist had established that the first condition “carried the imputations which he alleged are defamatory of him because they had the tendency to lower the esteem in which [the applicant] was held in his practice as a pharmacist by reasonable members of the public”.

“An ordinary reasonable reader would conclude that [the applicant] had self-administered or was addicted to Schedule 8 drugs and this was the reason why he was no longer entitled to sell those drugs.”

While Justice Siopsis found that the Board and AHPRA were jointly liable for the publication of the defamatory statement, he held that the Board’s defence of absolute privilege meant that the work of the notifications committee was quasi-judicial and therefore not subject to defamation proceedings.

Meanwhile, AHPRA successfully relied on the defence of publication in a public document.

Justice Siopsis did not find that the failure of the Board to immediately remove the first condition was motivated by ill-will or by desire to cause injury to his reputation.

He also found that the pharmacist did not succeed in establishing that AHPRA and the Board acted with malice in publishing and continuing to publish the first condition.

The pharmacist’s application filed at the end of 2014 was dismissed with costs.

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