Pharmacist breached numerous provisions of the Poisons and Therapeutic Goods Legislation

A pharmacist recently sought an injunction from the Equity Division of the Supreme Court of NSW preventing the Pharmacy Council of NSW (the Council) from suspending his registration or placing conditions on his registration as an interim measure pending a final determination by the Council of the action that they would take in response to an investigation report from the Pharmaceutical Services Unit (PSU). The report alleged that the pharmacist had breached numerous provisions of the Poisons and Therapeutic Goods Legislation as well as non-compliance with the Council’s policies in relation to compounding medicines and responsibilities of pharmacists as proprietors. Following receipt of this report the Council wrote to the pharmacist to advise him of its intention to convene an emergency hearing pursuant to s150 of the National Law to determine whether his registration should be suspended or conditions placed on it pending further investigation and action by it in response to the report. The pharmacist was given notice of this by way of letter dated 16 December 2015 and asked to provide any written submissions in response by 7 January 2016.

On 24 December 2015 the pharmacist’s solicitor sought an extension however, this request was denied. Subsequent to this further requests were made for an extension and denied leading the pharmacist to file a summons seeking an injunction. Following this the Council agreed to allow the practitioner an extension to respond to the Complaint until 19 January 2016. On 7 January 2016 the pharmacist requested copies of any source documents on which the PSU report was based and was advised that the author of the report was on leave and that the Council would need to wait for him to return on 25 January before they could respond. The pharmacist sought a further extension allowing him 14 days to respond to the Complaint after he was provided with the requested information. This request was denied.

Thereafter the pharmacist sought an injunction, which if granted, would prohibit the Council from making any orders in relation to suspension or the placing of conditions for a period of 22 days pending receipt by the pharmacist of requested information from the PSU.

Whilst it was accepted that any decision to suspend or place conditions on the pharmacist’s registration required that he be afforded procedural fairness, the Court noted that the principles of procedural fairness are flexible and can be adapted where there is a need for urgent decision making. The basis for the Council’s refusal to grant the additional extension sought was underpinned by its view that urgent action needed to be taken to ensure the public’s safety in light of the contents of the PSU report.

Ultimately the Court concluded that there had been no denial of procedural fairness nor that there was any evidence that there would be. The Court stated that the Council should be allowed to exercise its statutory functions and that there was no evidence that it would not exercise those functions pursuant to the relevant legislation.

The request for an injunction was denied and the pharmacist was ordered to pay the Council’s costs.

Post by Karen Kumar and Cameron Leaver

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