Chapter 7 Investigation, discipline and legal proceedings
INTRODUCTION
It is also important that the public has confidence in the investigatory, disciplinary and legal processes, and these are consistent and transparent with outcomes that reflect the gravity and nature of the matter. This chapter will focus on the processes of investigation and discipline as well as a summary of legal actions that may flow from them and also the impact of a national system of regulation.
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
Australian Capital Territory
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’.
New South Wales
Northern Territory
Queensland
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 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
‘Unprofessional conduct’ is defined in the dictionary section of the Act as including the following:
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
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
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
Section 32(1) of the Act details as follows the grounds for disciplinary action:
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