Investigation, discipline and legal proceedings

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Chapter 7 Investigation, discipline and legal proceedings

INVESTIGATIONS AND DISCIPLINE

In addition to the registration process, pharmacy registering authorities have the responsibility for the investigation and discipline of pharmacists. This includes the authority to receive complaints, investigate allegations of misconduct by pharmacists, and to take appropriate disciplinary action. In addition to the disciplinary processes of registering authorities, there are also the health complaints commissions in each state and territory which can also handle service complaints from the public. These commissions were established as part of a general move towards the recognition of greater consumer rights.[1] Complaints are managed through legislative arrangements and/or memorandums of understanding between the relevant commission and registration board, being dealt with by either body depending on the nature and seriousness of the complaint.

Table 7.1 lists the eight pharmacy registering authorities and the legislation providing for the management of complaints, investigations and discipline of pharmacists.

Table 7.1 Pharmacy regulation legislation dealing with discipline

Jurisdiction Authority Legislation specifying disciplinary process
ACT Pharmacy Board of the Australian Capital Territory Health Professionals Act 2004 (ACT)
NSW Pharmacy Board of New South Wales Pharmacy Practice Act 2006 (NSW)
NT Pharmacy Board of the Northern Territory Health Practitioners Act 2004 (NT)
Qld Pharmacists Board of Queensland Health Practitioner (Professional Standards) Act 1999 (Qld)
SA Pharmacy Board of South Australia Pharmacy Practice Act 2007 (SA)
Tas Pharmacy Board of Tasmania Pharmacists Registration Act 2001 (Tas)
Vic Pharmacy Board of Victoria Health Professions Registration Act 2005 (Vic)
WA Pharmaceutical Council of Western Australia Pharmacy Act 1964 (WA)

In Queensland the legislative provisions directed to the discipline of registrants has been separated from the legislation dealing with the registration of pharmacists. The Health Practitioner (Professional Standards) Act 1999 (Qld) applies to all health professionals, except nurses. The objective of dealing with all health professionals under one piece of legislation is to improve consistency across disciplines with regard to disciplinary processes and outcomes.

The following is a brief outline of the current relevant sections of legislation in each jurisdiction that address complaints, investigations and discipline. There have been recent arrangements as part of the proposed national registration scheme for health professionals (further discussed in Chapter 5) that will impact on disciplinary processes.[2]

OVERVIEW OF LEGISLATIVE FRAMEWORK

The Acts in each of the jurisdictions that identify the conduct or behaviour of a pharmacist that will generate disciplinary proceedings are not uniform. The types of categories of conduct that constitute a complaint differ between the jurisdictions. For example, there are differences in the definitions of ‘professional misconduct’ and ‘unprofessional conduct’ between the jurisdictions, and in some jurisdictions these terms are not used, relying on the term ‘unsatisfactory professional conduct’ instead. There is therefore a degree of inconsistency both with regard to the terms used, and the different meanings assigned to them.

However, the jurisdictions have similar step-wise processes in place whereby less serious breaches are streamlined and the more serious breaches are referred to committees or panels. However, a significant difference exists between the powers of the various authorities to impose sanctions; for example, in Queensland, Western Australia, Victoria, New South Wales, the Australian Capital Territory and the Northern Territory, the cancellation or suspension of registration is reserved for Tribunals overseen by a judge. In comparison, the Pharmacy Boards of South Australia and Tasmania have the power both to suspend registrations for up to 3 years, and to cancel registrations.

The current generation of Acts in most of the jurisdictions that reserve the authority to cancel or suspend registration, as mentioned above, are markedly different from their predecessors which provided the pharmacy boards with much more power. These changes resulted in part due to criticism that boards were perceived as being ‘soft on their own’ as the majority of board members are pharmacists. Boards were also seen as playing many roles; namely, investigator, prosecutor, judge, jury and executor (notwithstanding appeals to courts). Under such arrangements there was the perception of a lack of separation of powers. However, with contemporary arrangements in many jurisdictions, where the more serious breaches are heard by a tribunal presided over by a judge, there have been anecdotal reports of concerns being expressed that such structures have emasculated boards and contributed to increases in costs. However, there is a lack of evidence that this has in fact occurred.

Australian Capital Territory

The Pharmacy Board of the Australian Capital Territory (the board) is responsible for accepting and considering complaints against pharmacists and the general monitoring of the conduct of the profession under the Health Professionals Act 2004. The Act empowers the board to take disciplinary action against pharmacists who may be in breach of certain provisions of the Act. A complaint can become the subject of an investigation and disciplinary action through either a report made under the Act, a complaint made to the Human Rights Commission under the Human Rights Commission Act 2005, or as the result of a practice review. In general, complaints about the provision of health services are referred to the Human Rights Commission.

Section 18 of the Health Professionals Act 2004 defines the required standard of practice for a health professional as ‘the exercise of professional judgment, knowledge, skill and conduct at a level that maintains public protection and safety’.

The Act provides for the occupational discipline of health professionals by the ACT Civil and Administrative Tribunal (ACAT), established through the ACT Civil and Administrative Tribunal Act 2008. The board has to apply to the ACAT for an occupational discipline order if grounds for discipline exist. The ACAT may refer the matter to a Personal Assessment Panel (in case of physical or mental illness) or Professional Standards Panel. Section 107(1) of the Health Professionals Act 2004 defines the role of a Professional Standards Panel:

The panel must conduct a formal assessment before imposing any disciplinary measures, such as cautioning or reprimanding the pharmacist or imposing conditions on the registration of the pharmacist as considered appropriate. Cases that may require suspension or cancellation of registration need to be referred to the ACAT.

Impairment matters are dealt with by the Personal Assessment Panel. The panel provides a means by which health professionals, whose mental or physical health may be affecting their ability to meet the required standard of practice, can access assistance in dealing with the health problem proactively while simultaneously ensuring that the public is protected.

New South Wales

The Pharmacy Practice Act 2006 provides the Pharmacy Board of New South Wales (the board) with powers to receive complaints, appoint investigators and undertake investigations, initiate or refer disciplinary action, and manage pharmacists who may suffer from impairment.

Part 4 of the Act deals with complaints and disciplinary proceedings. Section 37 defines ‘unsatisfactory professional conduct’ to include:

‘Professional misconduct’ is defined in section 36 to mean ‘unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the pharmacist’s registration’.

Any person may make a complaint about the professional conduct of a pharmacist. The board is required to notify the Health Care Complaints Commission, established under the Health Care Complaints Act 1993, of all complaints and will reach an agreement with the commission regarding the most appropriate course of action. In responding to a complaint, the board may resolve the complaint itself, decline to deal with the complaint or otherwise refer the complaint to the Health Care Complaints Commission, a Pharmacy Care Assessment Committee, an Impaired Registrants Panel or the Pharmacy Tribunal.

Complaints referred to a Pharmacy Care Assessment Committee may require the pharmacist to undergo skills testing. Both the board and the commission are under an obligation to refer complaints to the Pharmacy Tribunal if they are of the opinion a complaint may provide grounds for suspension or cancellation of a pharmacist’s registration. The board may: caution or reprimand; make an order for the withholding or refunding of fees; order the pharmacist to seek and undergo medical or psychiatric treatment or counselling; impose conditions on a pharmacist’s registration; order the pharmacist to undergo additional training; and order that the pharmacist report back to the board or obtain management advice.

Section 70 specifies that, if the board considers the matter indicates a pharmacist suffers from physical or mental impairment, the matter be referred to an Impaired Registrants Panel. The board may require a pharmacist to undergo an examination before or after it has referred the matter to the Impaired Registrants Panel.

Part 11 of the Act covers the prohibition against directing or inciting an employee to engage in unsatisfactory professional conduct or professional misconduct. This prohibition requires the employer to ensure that they do not direct or incite a pharmacist in their employ to practise at a standard that is significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience. An employer found to have breached this prohibition is liable to pay a penalty of $22 000 for the first offence and $44 000 for a second or subsequent offence. If the employer is a corporation, the penalties are $44 000 for a first offence and $88 000 for a second or subsequent offence.

Northern Territory

The Health Practitioners Act 2004 provides the Pharmacy Board of the Northern Territory (the board) with powers to receive complaints, appoint investigators and undertake investigations, refer disciplinary action, and manage pharmacists who may suffer an impairment.

Section 56(2) defines that a health practitioner is guilty of professional misconduct if the health practitioner:

Disciplinary hearings are undertaken by the Health Professional Review Tribunal which has the power to: cancel or suspend a pharmacist’s registration; fine a pharmacist, impose conditions on a pharmacist’s practice or advice; and caution or reprimand a pharmacist.

Impaired pharmacists are managed under Part 5 of the Act which provides the board with powers to investigate impairment and require a medical examination. The board may also obtain a performance assessment and undertake a performance assessment hearing.

Queensland

The administration of the Health Practitioners (Professional Standards) Act 1999 is vested in the various health practitioner boards. In essence the Act details both the complaint process, and the investigation process, and defines a number of disciplinary levels that may be invoked by the Pharmacists Board of Queensland (the board). Complaints that relate to service provision or medical records are referred to the Queensland Health Quality and Complaints Commission, established under the Health Quality and Complaints Commission Act 2006.

Pursuant to section 48 of the Health Practitioners (Professional Standards) Act 1999 a complaint to the board may be about ‘… any aspect of a registrant’s conduct or practice, or another matter relating to the registrant that appears to provide grounds for disciplinary action against the registrant’. Also, if the board reasonably believes that an aspect of a registrant’s conduct or practice may provide grounds for disciplinary action it may conduct an investigation on its own initiative; that is, without having received a complaint. In addition, the board may immediately suspend or impose conditions on a pharmacist’s registration if the board reasonably believes that: (a) the registrant poses an imminent threat to the wellbeing of vulnerable persons; and (b) immediate action to suspend, or impose conditions on, the registrant’s registration is necessary to protect the vulnerable persons.

Grounds for disciplinary action are included in section 124 of the Act and include the following:

‘Unsatisfactory professional conduct’ is defined in the Schedule dictionary of the Act as:

The Act describes the stepwise approach to be followed when disciplinary action is taken by the board. Disciplinary action by the board itself can be undertaken for less serious matters where the board’s powers are limited to advice, caution or reprimand or, with the registrant’s agreement, entering into an undertaking. Matters of a more serious nature may be referred to a Professional Conduct Review Panel under section 126(1)(b) of the Act. The panel can impose conditions on the practice of a pharmacist as well as advising, cautioning or reprimanding a pharmacist. Finally, in those cases where the board could reasonably form an opinion that a pharmacist could face cancellation or suspension of registration, the board will usually refer a matter to the Health Practitioners Tribunal under section 134(1) of the Act. The tribunal sits in the District Court and hearings are before a District Court judge.

The Act also empowers the board to manage impaired practitioners, including persons suffering from mental or physical illness and/or drug addiction. The impaired practitioner may be managed without recourse to disciplinary action, although disciplinary action may be invoked by the board depending on the circumstances.

South Australia

Part 4 of the Pharmacy Practice Act 2007 deals with disciplinary investigations and proceedings. Under the Act the Pharmacy Board of South Australia (the board) must investigate all complaints received. The board may also, by its own initiative, decide that a matter could be grounds for a complaint and refer it for investigation. The board may also refer matters to the office of the Health and Community Services Complaints Commissioner.

‘Unprofessional conduct’ is defined in the dictionary section of the Act as including the following:

If the board decides to proceed with a complaint it is referred to a Complaints Advisory Committee for investigation. After the investigation of the complaint is completed a committee must either:

Informal disciplinary proceedings are usually held as part of a regular board meeting. The board may caution or reprimand the pharmacist concerned or accept an undertaking from the pharmacist to take or refrain from taking specified action.

Formal disciplinary proceedings are instituted if a complaint is of a serious nature. The Act empowers the board to act as a Disciplinary Tribunal during formal disciplinary hearings and the board has the power to take one or more of the following actions:

Section 64 of the Act prohibits a pharmacy owner, pharmacy manager or company providing pharmacy services to direct or pressure a pharmacist or pharmacy student to engage in unprofessional conduct. The maximum penalty is $75 000.

Section 51 of the Act imposes the responsibility on the pharmacist, or health professional that treats a pharmacist, or a university where a pharmacy student is enrolled, to notify the board if they are of the opinion that a student or pharmacist is ‘medically unfit’ to practise. The board then conducts an inquiry to determine whether the pharmacist or student is mentally or physically unfit to practise.

Tasmania

Part 4 of the Pharmacists Registration Act 2001 empowers the Pharmacy Board of Tasmania (the board) to receive complaints, undertake investigations through the instrument of an investigating committee, and undertake hearings both formally and informally. Section 43(2) provides a very broad definition of ‘professional misconduct’ as:

Complaints that are of a commercial nature, for example concerns regarding pricing, should be referred to the Health Complaints Commissioner.

An Investigating Committee refers complaints to an informal hearing if it is considered that the complaint relates to a less serious matter. This process provides a pharmacist with the opportunity to appear before the board and give a face-to-face explanation of his or her actions, or provide the board with a written explanation. Should the Investigating Committee consider that the matter is of a serious nature, a formal disciplinary proceeding will be instituted. These complaints are dealt with by the board acting in the capacity of a Disciplinary Tribunal. The board, in its discretion, may take one or more of the following actions as it considers appropriate in light of the findings:

While the matter of impairment is not specifically mentioned in the Act, the board may, under section 43(c), investigate a pharmacist who, it is alleged ‘… lacks sufficient physical capacity, mental capacity or skill to engage in the practice of pharmacy …’

Victoria

The Health Professions Registration Act 2005 covers the regulation of a range of health professions in Victoria, including pharmacists and pharmacy students. Under the Act, the Pharmacy Board of Victoria (the board) investigates complaints of professional misconduct or unprofessional conduct. Section 3 of the Act defines ‘professional misconduct’ as:

The Act clearly differentiates between professional misconduct and unprofessional conduct. Whereas the first is defined as a more severe breach of expected conduct, ‘unprofessional conduct’ is defined as:

Section 42 of the Act specifies that a person may notify the board about a practitioner’s ability to practise where there are concerns about the practitioner’s physical or mental health, his or her professional performance or if the practitioner has engaged in professional misconduct or unprofessional conduct. Section 47 provides for the board to investigate a matter on its own motion without having received a notification. Section 40 empowers the board to suspend a registrant’s registration at any time if the board is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered.

Complaints may also be directed to the Health Services Commissioner under the Health Services (Conciliation and Review) Act 1987. Complaints referred to the Commissioner are in relation to a person failing to provide a service, the service itself, or when a public or private health care institution has acted unreasonably in not properly investigating or not taking proper action upon a complaint about the service that was not provided, or if the complaint is about health records.

At the conclusion of the investigation, the board may caution the pharmacist for any breach of professional practice standards or refer the matter to a Professional Standards Panel or to the Victorian Civil and Administrative Tribunal (VCAT). Section 60 of the Act provides a mechanism for a complaint notifier to apply to the board to establish an Investigation Review Panel if the notifier is dissatisfied with the board’s decision in not taking action or not referring the case to the VCAT.

A Professional Standards Panel may caution or reprimand a registrant, recommend that the registrant undergo counselling, impose a condition on the health practitioner’s registration or endorsement of registration, prescribe changes to the ways in which the registrant practises, or direct the registrant to undertake and complete specified further education or training within a specified period.

In addition to the outcomes identified above, the VCAT may impose a condition on registration, impose a fine, suspend registration for a period of time, or order:

VCAT may also cancel the registrant’s registration.

Section 36 of the Act requires medical practitioners to notify the board if they are treating a pharmacist or a registered pharmacy student who suffers from an illness or condition which, in their opinion, impairs or may seriously impair that person’s ability to practise as a pharmacist or that student’s ability to undertake clinical training, and may result in the public being at risk. Sections 51 to 54 provide the board with the power to initiate a health assessment of the registrant or student by a registered health practitioner following the outcome of an investigation.

Western Australia

The Pharmacy Act 1964 provides the Pharmaceutical Council of Western Australia (the council) with powers to undertake investigations and, where appropriate, refer disciplinary matters for hearing by the State Administrative Tribunal.

Section 32(1) of the Act details as follows the grounds for disciplinary action:

Subsection 4 specifies that the council may deal with the matter if it is not of a serious nature and may fine a registrant up to $2500 in addition to payment of council legal costs. The council may also, subject to the approval of the Minister, by order suspend any licence or registration granted under the Act for a period not exceeding 21 days.

Subsection 2 provides for the council to refer cases to the State Administrative Tribunal that are of a more serious nature. The tribunal inter alia

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