Proceedings to commence over 10-year-old final check failure

tribunal hearing legal case

Is it too late for the Pharmacy Board to seek sanctions against two pharmacists for their dispensing behaviour in 2008-09? A tribunal has found it isn’t

Two pharmacists have made an application to strike out proceedings against them, saying that there was an “extraordinary overall delay,” with no evidence to justify or excuse it, in the proceedings.

A hearing at the State Administrative Tribunal examined the Pharmacy Board’s application against the two West Australian pharmacists, which had been filed in May 2017.

It pertained to their dispensing of anabolic steroids between 1 January 2008 and 30 April 2009.

The applications against the two pharmacists allege that they engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose which they knew, or ought to have known, did not accord with recognised therapeutic standards.

They allege that the two dispensed the steroids to patients in quantities and/or in combinations which they knew (or should have known) were not necessary for any proper therapeutic purpose, which could have been on-sold and had the potential for misuse, abuse or psychological and/or physical dependency.

The Board also alleged that the pharmacists were dispensing anabolic androgenic steroids to patients by dispensing repeat authorisations and/or multiple prescriptions in the same transaction; or in separate transactions conducted significantly within the period in which the medication would have been consumed if taken at the usual dosage.

Relating to the female pharmacist, the Tribunal noted that “the primary complaint in this matter is not that the respondent failed to discuss the validity of the treatment regime with the treating doctors, but rather, that she failed to perform her important role as a final check on the prescribing practices of the treating doctors by failing to exercise her own independent professional judgment”.

“The respondent’s failures must be considered in light of the expectation that pharmacists be a final check on prescribing doctors.

“The fundamental nature of that role is demonstrated by the fact that in this case, those treating doctors were successfully disciplined in relation to the inappropriateness of their treatment regimes.

“Had the respondent been acting in accordance with her obligations just described, then those improper regimes might have been discovered earlier or might have been prevented in the first instance.”

The Board says that her response to its application are “in effect, a full admission to that misconduct in the sense that the respondent admits to having delegated her own professional judgment to the prescribing doctors”.

But why did it take so long to bring the case?

A former case manager with the Medical Board of Western Australia (who now works for AHPRA) explained to the Tribunal that in 2009, a report on the three doctors and their prescribing behaviour was compiled – the Bateman Report, compiled by Robert Bateman, an employee of the Pharmaceutical Services Branch of the Department of Health.

The report included the conduct of the two pharmacists.

The AHPRA employee said that to his knowledge, the Medical Board did not provide a copy of this report to the Pharmaceutical Council of Western Australia, the Pharmacy Board’s predecessor before transition to the current AHPRA-managed scheme in 2010.

Neither the Pharmacy Board nor its predecessor were aware of the existence of the Bateman Report, the Tribunal noted.

Meanwhile, between 2004 and 2012 (including the period in question) the Health Department made seven or eight audits of the pharmacy concerned, according to its owner, the male pharmacist against whom the Board brought proceedings.

He said that other than a “generalised concern about the possible diversion of anabolic steroids and requesting that his pharmacy take care to ensure that the person picking up the script was always the same person named on the prescription,” auditors raised no concerns.

The female pharmacist also said that at no time between 2009 and August 2015 were any concerns raised with her about her dispensing of anabolic steroids.

The pharmacy stopped compounding anabolics in 2010 and since then its dispensing of Sustanon and Deca Durabolin has reduced significantly.

At the end of 2014, a then director of MDS Legal who had acted for the Medical Board of Australia in relation to proceedings against the three prescribers, sent the Bateman report to AHPRA.

This was the first time the Pharmacy Board had been made aware of the two pharmacists’ conduct.

An investigation into the pair began in January 2015, and in August AHPRA wrote to the female pharmacist for her response to the allegations. In August, both pharmacists received a letter from AHPRA advising them of the investigation into their dispensing of anabolic steroids.

AHPRA continued to get in touch with them until September 2016 to let them know that its investigation was continuing.

In November 2016 it sought an independent opinion and the two pharmacists responded to the resulting reports by December 2016.

In January 2017, the Board decided to refer the conduct to the Tribunal.

The proceedings commenced in May 2017 with a mediation listed for July, and then delayed till August at the respondents’ request.

They applied to strike out the proceedings in November, saying that the time period between the original investigation into the pharmacy and the compilation of the Bateman Report in 2009, and the subsequent notification of the complaint to the respondent in August 2015 (more than six years) constituted extraordinary delay with no justifiable explanation, further delayed by the independent report obtained by the Board.

They said their memory of the dispensing incidents had faded and they could not now be expected to recall “how a particular patient presented or what precisely was asked by them of a patient or what discussions they had with a particular patient”.

But the Board said that since it only became aware of the behaviour in November 2014, it had needed to carry out a “proper investigation”.

The Tribunal noted that “Given the way the Board puts its case, the principal evidence that the Board will rely on is the dispensing records”.

“The Board’s case is based on these dispensing records. In terms of the Board’s case whether the respondents had conversations with dispensing doctors and patients is largely irrelevant.”

The Board said that while the pharmacists’ conduct since the conduct in question “indicates a lesser need for specific deterrence,” it was important that pharmacists appreciate that if they do not carry out their practice independently and as a final check on prescribers, they will be sanctioned.

The Tribunal agreed and dismissed the pharmacist’ application.

“Of course it would have been desirable if AHPRA was able to act more quickly, but in the circumstances the delay is not extraordinary,” it said.

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