A WA pharmacist has had defamation proceedings against the Pharmacy Board dismissed after he claimed the Board’s publication of conditions on his registration could lead people to falsely conclude he had misused S8 drugs
In 2013 the former pharmacy owner, was convicted in the Magistrates Court of offences relating to the way he had stored Schedule 8 drugs, and the way he maintained the register of S8 drugs at the pharmacy.
The Department of Health of Western Australia had subsequently revoked the pharmacist’s authority as a pharmacist to deal with S8s and informed AHPRA. The Pharmacy Board then imposed several conditions on his registration as a pharmacist.
AHPRA published the fact of the imposition and the nine conditions on its website.
The pharmacist was particularly concerned about the first condition on this list, which read: “The Registrant is prohibited from taking or self-administering Schedule 8 drugs, save for those that may be legally prescribed for him”.
He commenced a proceeding claiming the Pharmacy Board and AHPRA “had engaged in misleading or deceptive conduct, and were liable for defamation, as well as malicious falsehood”.
“[The pharmacist] contended that the prominence of the first condition at the head of the other conditions would cause a reasonable reader of the third respondent’s webpage entry to entertain the impression that the other conditions were related to, and had been imposed, consequent upon [the pharmacist] having been found guilty of improperly or unlawfully taking or self administering the Schedule 8 drugs or because he was an addicted drug taker,” Justice Siopis noted.
“[The pharmacist] went on to contend that such an imputation was false and defamatory as well as constituting misleading or deceptive conduct and malicious falsehood. [The pharmacist] claimed a mandatory injunction for the removal of the conditions and damages.
“On 14 January 2015, [the pharmacist] also applied for interlocutory orders that the respondents remove the conditions which had been imposed on him and the attendant publication on the third respondent’s website.
“[The pharmacist] also sought an order for an interim payment of $150,000 to be paid forthwith.”
Justice Siopis declined to grant the pharmacist’s application for an interlocutory injunction because he had not demonstrated he would suffer irreparable harm pending trial, he noted.
“This was because [the pharmacist] had not adduced evidence of any job applications he had made which had failed by reason of the potential employer believing [the pharmacist] to be an addicted drug taker or someone who had self-administered Schedule 8 drugs, or had otherwise been influenced by the publication of those conditions.
“Nor had [the pharmacist] produced any evidence of any job applications he had made which were pending.”
It was anticipated at the time that the originating application would come to trial in May 2015, but this did not occur.
In July 2015, after consulting with the pharmacist, the Board voluntarily removed the first condition, and AHPRA removed it from its website.
However in September 2016 the pharmacist “gave oral notice during a directions hearing” that he wished to renew an application for an interlocutory injunction.
Justice Siopis dismissed the application and ordered the pharmacist to pay court costs.
“[The pharmacist]’s argument does not demonstrate a sufficiently strong case that a reasonable reader of the conditions would conclude that [the pharmacist] is an addicted drug taker, such as to warrant the grant of what is, in effect, final relief in the form of a mandatory injunction.
“As to the question of balance of convenience and irreparable harm, [the pharmacist] has not adduced any evidence to show that he has any pending job applications which may be influenced by the imputations arising from the publication of the conditions which he alleges.”
Justice Siopis also dismissed proceedings against Dr Andrew Robertson in his capacity as the delegate to the CEO of the Department of Health, as the pharmacist had “no reasonable prospect” of succeeding in his claim against him.
In late 2015 the pharmacist also lost a case against his local shire council, after a reference to the S8 conditions appeared in council minutes relating to his application for a PBS approval number.