Suspension stoush

Could leaving the dispensary for a toilet break constitute a risk to the public, if the pharmacist was facing charges?

A Tribunal decision has been set aside after a Supreme Court decision that it constituted a “constructive failure to exercise jurisdiction and an error of law on the face of the record”.

The Pharmacy Council of NSW sought leave to appeal a December 2019 NSW Civil and Administrative Tribunal decision in the case of a pharmacist who has been charged with sexual offences.

These included a charge under one Crime Act (sexual intercourse without consent) and two under a second section (sexually touching another person without consent).

The Court noted that these criminal charges are due to be heard in the Local Court in September 2020, and that the pharmacist has pleaded not guilty to them.

On being advised of these charges, the Pharmacy Council wrote to the pharmacist about the possible suspension, or imposition of conditions, on his license to practise pharmacy. In August 2019, it suspended his registration.

In doing so, the Council “considered that maintaining the necessary standard of practice, including ethical conduct, is at the core of public confidence in the pharmaceutical profession,” the Court noted.

“It was the opinion of the Pharmacy Council that public confidence in the profession would be greatly diminished if a pharmacist who had been charged with sexual assault upon a customer was able to continue to practice pending the outcome of the trial.”

A couple of days later, the pharmacist commended Tribunal proceedings to stay this action. Later, he filed an amended application to appeal the decision.

The Tribunal looked at the decision to suspend, and decided against the Council’s argument—that there was a risk to public health and safety if the pharmacist was allowed to interact with anyone—because he was already out on bail.

The Tribunal had decided that the Council’s suggestion that the pharmacist would pose a risk to the public if he left the dispensary for a toilet break as “fanciful,” saying there was no detectable risk if the pharmacist was allowed to work in a dispensary without dealing with the public.

At the time, the Tribunal set aside the Pharmacy Council’s decision to suspend the defendant’s registration as a pharmacist, and substituted a decision to allow the defendant to continue to practice as a pharmacist subject to a number of specified conditions.

In the Supreme Court, the Council sought to have the Tribunal’s decision set aside and to have the Supreme Court instead decide that the pharmacist’s registration be suspended.

Alternatively the proceedings could be remitted to a differently constituted Tribunal member to be determined in accordance with law.

Meanwhile the Supreme Court hearing also saw the pharmacist, who was unrepresented, request that the conditions to his practice be quashed.

The pharmacist said that he did not wish to have his registration suspended, and that because the conditions currently qualifying his ability to practise are so onerous, he was currently unemployed.

The Court could not allow this request, however, as the pharmacist had not appealed the Tribunal decision.

The Pharmacy Council’s legal representative said that the charges were serious and there was a “degree of urgency” around the case, meaning it should be resolved as soon as possible.

She said that as a result the Supreme Court should not remit the matter but instead substitute its own decision for that of the Tribunal.

However the judge noted that while the legal proceedings have already been protracted, some of the Tribunal members may have more expertise in the area of public interest of pharmacists and their profession.

“Hence, it is more appropriate that these proceedings be remitted to NCAT to be determined according to law by a differently constituted Tribunal.”

The decision was set aside and the proceedings remitted to NCAT, differently constituted, to be determined according to law.

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