Applications filed against two registered pharmacists in relation to alleged acts of professional misconduct, unprofessional conduct and/or unsatisfactory performance.

Background Facts

On 16 May 2017, The Pharmacy Board of Australia (the Board) filed applications under the Health Practitioners National Law (WA) Act 2010 (the Act) against Ms Hamilton and Mr Hedge, both registered pharmacists, alleging that they had engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory performance during the period 1 January 2008 to 30 April 2009 (the period).

The specific allegations were that during the period Ms Hamilton and Mr Hedge dispensed anabolic steroids to their customers in quantities and combinations that they knew or ought to have known were not necessary for any therapeutic purpose, were likely to constitute an unacceptable risk to health, and had the potential for misuse, abuse and/or psychological dependence.

Both Mr Hedge and Ms Hamilton applied for orders pursuant to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) striking out the Applications on the basis that the Applications constituted an abuse of process due to the unreasonable delay by the Board in filing the Applications.

Consideration

The Health Department conducted seven or eight audits of Mr Hedge's pharmacy between 2004 and 2012, five of these occurred during the relevant period. The conduct of both respondents was the subject of a report prepared by Mr Robert Bateman, an employee of the Pharmaceutical Services Branch of the Department of Health, dated 26 June 2009 (Bateman Report).

The Board notified the Australia Health Practitioner Regulation Agency (AHPRA) of Ms Hamilton's and Mr Hedge's alleged conduct on 26 November 2014. This was the first time the conduct had been brought to the Board's attention. An investigation took place. The respondents were notified about the complaint in August 2015. The Board sought independent advice and the Board made the decision to refer Ms Hamilton's and Mr Hedge's conduct to the Tribunal.

The respondents submitted that there was excessive delay between the Bateman Report and the subsequent notification of the complaint to the respondents in August 2015. The Board's case was that they did not become aware of the complaint until November 2014 and that the respondents submissions operate on the mistaken assumption that the Board has been aware of the respondents' conduct since 2009. The respondents further submitted that they would suffer prejudice given the passage of time.

The Tribunal agreed that there was a long delay between the creation of the Bateman Report and the notification of the complaint to the respondents. This delay was not attributable to AHPRA or the Board. In the context of the Board obtaining a copy of the report in 2014 the Tribunal found that there was not extraordinary delay.

The Tribunal was not persuaded that the loss of records of conversations with dispensing doctors and patients would prejudice the respondents in meeting the case put against them by the Board. The Tribunal stated that general statements as to prejudice are not sufficient to discharge the heavy onus that lies on the respondents. Further, the principal evidence that the Board would rely on is the dispensing records and it was not suggested that any of the dispensing records were missing.

Order

The Tribunal ordered the interim application by the respondents be dismissed.