The key issue
Whether the agreed position between the parties with respect to the penalty was appropriate.
The background
Between March 2010 and April 2018, the pharmacist initiated an intimate personal relationship with Patient 1, who was also an employee at his practice. The pharmacist also engaged in a second relationship with Patient 2 between 8 October 2016 and 29 December 2017. Throughout both relationships, the pharmacist had dispensed medication to both patients including anti-depressant medication.
In January 2019, Patient 1 made a complaint to the Pharmacy Board of Australia (the Board) about the personal relationship with the pharmacist, and the Board subsequently became aware of the pharmacist’s relationship with Patient 2.
On 23 August 2019, the Board took immediate action to suspend the pharmacist’s registration. This decision was stayed on 12 September 2019 while the Board’s investigation continued. On 11 May 2020, the pharmacist provided an undertaking that he would not practice as a pharmacist.
In respect of the disciplinary proceedings, the parties agreed to an Amended Notice of Allegations stating that the pharmacist had engaged in professional misconduct in that he had conducted inappropriate personal and/or intimate and/or sexual relationships with Patients 1 and 2.
The outcome
The Victorian Civil and Administrative Tribunal determined that the agreed position was appropriate in this case, and as such the pharmacist had engaged in professional misconduct by failing to maintain boundaries that should and ordinarily do, delineate the pharmacist-patient relationship. In mitigation, the pharmacist accepted that the conduct constituted professional misconduct, that he was an experienced pharmacist and he had demonstrated clear insight into his actions.
The pharmacist was reprimanded and had a mentoring condition imposed on his registration. The reprimand and mentoring condition were appropriate in the circumstances because the pharmacist had already spent 13 months out of practice and no further time was required to satisfy the need for general deterrence.
The implications
The case highlights that, where a practitioner has spent a significant period out of practice as a result of conduct which is ultimately referred to a tribunal, it may be inappropriate to further prohibit the practitioner from practising in the interest of general deterrence considerations.
The decision of Pharmacy Board of Australia v Hopwood (Review and Regulation) [2021] VCAT 575 can be read here.
Authors: Daniel Spencer and Morgan Barnsby.
