QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v DeCelis [2019] QCAT 140	
PARTIES:	HEALTH OMBUDSMAN
(applicant)	
	v	
	MICHAEL DECELIS
(respondent)	
APPLICATION NO/S:	OCR177-18	
MATTER TYPE:	Occupational regulation matter	
DELIVERED ON:	Date of Decision: 5 April 2019
Date of Amended Decision: 2 May 2019 Date of Publication of Reasons: 5 June 2019	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Judge Allen QC, Deputy President
Assisted by: Ms N Cawcutt Dr G Neilson Mr R Smith	
ORDERS:	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent had behaved in a way that constitutes professional misconduct.
Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
No order as to costs.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS
DISCIPLINARY PROCEEDINGS – MISCONDUCT
IN PROFESSIONAL RESPECT – where the respondent was a pharmacist – where disciplinary proceedings were instituted against the respondent in relation to dishonestly obtaining pharmaceutical cocaine for his own use – where the respondent has fully cooperated with the proceedings
where the respondent concedes that the conduct is professional misconduct - where the parties have provided joint submissions – whether the sanction proposed is appropriate

Health Ombudsman Act 2019 (Qld), s 4, s 107
Health Practitioner Regulation National Law (Qld), s 130	

	Medical Board of Australia v Davis [2018] QCAT 215 Medical Board of Australia v Dolar [2012] QCAT 271 Medical Board of Australia v Fitzgerald [2014] QCAT 425
Medical Board of Australia v Holding [2014] QCAT 632 Medical Board of Australia v Martin [2013] QCAT 376 Psychology Board of Australia v Cameron [2015] QCAT 227	
REPRESENTATION:	
Applicant:	Director of Proceedings, on behalf of the Health Ombudsman	
Respondent:	Potts Lawyers	
APPEARANCES:		
This matter was heard and determined on the papers pursuant to s 32 of the
Queensland Civil and Administrative Tribunal Act 2009 (Qld).	

REASONS FOR DECISION
The respondent was a registered pharmacist in the first half of 2015 when he used his employment as a pharmacist to dishonestly obtain cocaine for his own use. The respondent altered pharmacy records to avoid detection of his conduct. The respondent ceased his conduct of his own volition in mid-2015, quit his job at the pharmacy and sought treatment for his drug addiction and mental health. He was later charged and convicted in the Supreme Court of offences of dishonesty and possession of dangerous drugs because of his conduct, and was made subject to lengthy probation and community service orders. The applicant has referred disciplinary proceedings to the Tribunal because of the respondent’s conduct. The respondent has not been registered as a pharmacist since 2015. He has since completed a medical degree and been granted provisional registration as a medical practitioner subject to conditions.
There is no dispute between the parties as to the relevant facts, including the details of the conduct alleged to constitute professional misconduct, its characterisation as professional misconduct and appropriate orders by way of sanction.
The respondent graduated with a Bachelor of Pharmacy degree from the University of Sydney in 2006, and was employed as a pharmacist in a number of positions from 2006 to 2015. In the first half of 2015, the respondent was aged 30 years and was employed part-time in a Brisbane pharmacy whilst studying for a Bachelor of Medicine, Bachelor of Surgery degree at the University of Queensland.
On six occasions between January and July 2015, the respondent dishonestly obtained a total of seven 5mg doses of cocaine by ordering the cocaine to his employer’s pharmacy, without authority and without a prescription, for his own personal use. The respondent altered the pharmacy records to avoid detection of his conduct. The pharmaceutical cocaine the respondent obtained was significantly more potent than street grade cocaine, being almost 90 per cent pure. Before his conduct was discovered, the respondent ended his conduct of his own volition on about 4 July 2015

and quit his job at the pharmacy. The respondent then sought treatment from a clinical psychologist for his drug addiction and mental health.
On 19 November 2015, the respondent was charged with offences of dishonesty and possession of dangerous drugs. The charges related to the same conduct the subject of these disciplinary proceedings. The respondent was required by s 130 of the Health Practitioner Regulation National Law (Qld) (“the National Law”) to inform the Pharmacy Board of Australia within seven days of being charged with the offences but failed to do so. The respondent did not seek to renew his registration in 2015 and it lapsed on about 30 November 2015.
Both parties submit and the Tribunal readily agrees that the respondent’s conduct amounts to professional misconduct. The Tribunal finds accordingly.
On 1 February 2017, the respondent appeared before the Supreme Court at Brisbane and pleaded guilty to one offence of fraud and six offences of possessing dangerous drugs. He was placed on probation for a period of three years and ordered to perform 240 hours community service and pay compensation to his ex-employer for the cost of the cocaine. The sentencing judge noted the seriousness of the offences involving an abuse of his position as a pharmacist and a breach of the duty he owed to the public and his employer. The sentencing judge noted the mitigating factors of the respondent’s early pleas of guilty, good prospects of rehabilitation, evidenced by clean urine tests in the period prior to sentencing and lack of any other criminal history. The sentencing judge noted that the respondent had particularly challenging personal circumstances at the time of the offending, that his decision making capacity would have been impaired and that he was using cocaine to self-medicate and lift his mood. The sentencing judge took into account that the respondent ceased his employment voluntarily so that any temptation to further abuse drugs would be removed and voluntarily entered into treatment prior to his offending being detected.
Throughout the period of the investigation of misconduct and referral of disciplinary proceedings, the respondent has cooperated fully with all regulatory authorities involved in the matter. The parties have filed a statement of agreed facts and joint submissions.
The respondent’s efforts towards rehabilitation have been successful. He has returned clean results under a strict regime of drug testing, He has completed his university studies. His psychologist was of the opinion in June 2018 that no further therapeutic appointments were necessary.
In November 2017, the respondent submitted an application for a provisional registration as a medical practitioner in which he disclosed his conduct as a pharmacist. On 7 February 2018, the Australian Health Practitioner Regulation Agency (“AHPRA”) granted the respondent provisional registration as a medical practitioner, subject to conditions, to undertake an internship as a medical practitioner. The respondent has yet to undertake an internship, having had an internship offer withdrawn due to these ongoing disciplinary proceedings. This has led to at least a year’s delay in the respondent being able to commence employment as a medical practitioner. The respondent is hopeful that once these disciplinary proceedings have been finalised he will obtain an internship at a hospital to work as a medical practitioner subject to the extensive conditions imposed by AHPRA.

In determining an appropriate sanction for the respondent’s misconduct, the health and safety of the public are paramount.1 The purpose of the disciplinary proceedings and any sanction imposed is protective, not punitive.2
In considering appropriate orders for sanction, it is significant that the respondent’s cessation of practice has resulted in an effective suspension from practice as a registered pharmacist for over three years. The respondent has complied with conditions imposed on his provisional registration as a medical practitioner. He has demonstrably abstained from drug use during a stressful time in his life including the completion of medical studies, the finalisation of criminal proceedings against him and these disciplinary proceedings. There is no evidence of any current impairment. The evidence is that the respondent is fit to practice. Any suspension of practice would impact upon the respondent’s ability to obtain employment as a medical practitioner and would be unnecessary for the protection of the public and unduly punitive.
In these circumstances, the parties jointly submit that an appropriate order for sanction would be a reprimand. A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.3 A reprimand is a matter of public record affecting the reputation of a practitioner.4 The respondent’s misconduct was a serious breach of the professional and legal obligations of a pharmacist in dealing with drugs liable to misuse. It involved a gross breach of the trust expected of him by the public and his employer. The respondent’s conduct deserves denunciation by the Tribunal.

The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties.5 However, the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.6 The Tribunal accepts that a reprimand is the appropriate order by way of sanction in this matter.
Accordingly:
Pursuant to s 107(2)(b)(3) of the Health Ombudsman Act 2019 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to s 107(3)(a) of the Health Ombudsman Act 2019 (Qld), the respondent is reprimanded.
No order as to costs.

1	Health Ombudsman Act 2019 (Qld), s 4.
2	Medical Board of Australia v Dolar [2012] QCAT 271, [30].
3	Psychology Board of Australia v Cameron [2015] QCAT 227.
4	Medical Board of Australia v Holding [2014] QCAT 632, [39] and see Medical Board of Australia v Davis [2018] QCAT 215, [62].
5	Medical Board of Australia v Martin [2013] QCAT 376, [91].
6	Medical Board of Australia v Fitzgerald [2014] QCAT 425, [17].