Pharmacists who have been investigated by the Pharmaceutical Services Unit (PSU) will usually have to face complaints lodged with the Pharmacy Council of NSW (Council) and the Health Care Complaints Commission of NSW (Commission). These complaints are typically made by the PSU investigation officer and are supported by “reports”. Those reports typically outline the officer’s key findings, areas of concern and recommendations, as well as providing a comprehensive insight into the pharmacy’s processes and systems, and often disclose confidential and private patient information. They are often prepared without the pharmacist being afforded any right of reply or opportunity to review the report before the PSU provides it to the Council or the Commission.
For instance, one of our clients was being investigated by the PSU for allegedly improperly dispensing Schedule 8 medications. The ‘inspection report’ included copies of seized scripts and dispensing system records, detailing patient names, medication types, dosages and much more. It also made recommendations as to how these matters ought to be handled. The investigating officer then, upon the conclusion of their investigations, made a complaint to both the Council and the Commission separately and disclosed the report as part of the complaints.
The critical question that arises here is whether a PSU officer is empowered to disclose such reports, which contain private and sensitive information obtained through notices the pharmacist has to comply with, to non-PSU entities.
Confidential Nature
These reports are inherently confidential in nature, detailing not only sensitive information about the pharmacy business but also about its patients. Pharmacists are compelled to provide insight into their business and patients at the request of the PSU and to assist them in their investigations. The report should retain its confidential nature and be treated as such by PSU officers.
However, when a PSU officer discloses such a report to the Council or Commission, albeit as part of a complaint, they are handing this information over to an independent third party without the consent of the pharmacist or the patients to which that information pertains.
As pharmacists are likely already aware, the PSU, Council and Commission are separate and individual agencies who operate severally from one another. Each has a different role and function, as well as different powers and constraints. As such, sharing these reports to the Council and/or Commission is not merely a case of cross-departmental correspondence, it is disclosure of confidential information that the pharmacist had to provide to the PSU and which the PSU provides to a third party.
Personal Capacity
Further complicating this issue is the fact that complaints made by PSU officers are made in their personal capacity. Under section 144B of the Health Practitioner Regulation National Law (NSW), “any person” is allowed to file a complaint with the Council or the Commission. This legislation does not allow an agency, such as the PSU, to make a complaint against a registered health practitioner. As such, the complaint must be made by an individual person.
This raises the question if a PSU officer is making a complaint in their personal capacity, is it appropriate or lawful for them to disclose a report which was created in the course of their employment and obtained under a power available to the PSU not the individual themselves? But for their role as a PSU officer, they would not be privy to the sensitive information collated in the report.
From a moral standpoint, the dissemination of confidential and private information by PSU officers to external agencies is troubling. Pharmacists have a right to expect that their information, and that of their patients, will be handled with the utmost confidentiality. Legally, it is questionable whether PSU officers have the standing to disclose reports generated from information obtained during the course of their employment.
Apprehension of Bias
Another concern is whether the report might result in an apprehension of bias. As the reports often draw conclusions and provide recommendations regarding the punishment or sanctioning of pharmacists, this could unduly influence the decision-making process of the Council or HCCC. This would have the unfortunate effect of leading to a biased decision being made. While that decision can be appealed that comes with substantial further legal costs to the pharmacist involved.
For example, one of our clients faced a section 150 hearing following a PSU officer making a complaint to the Council, which disclosed their inspection report. The report raised serious allegations of fraud, though it was acknowledged that further investigation was required. On the basis of this report the Council commenced s 150 proceedings and ultimately, suspended the pharmacist’s registration.
This demonstrates that allegations made by the PSU in their reports, while unproven and not properly investigated, can be harmful to pharmacists and result in suspension.
Conclusion
The practice of PSU officers filing complaints and providing their reports to the Council and/or Commission raises significant legal concerns. These reports contain sensitive and private information that should be handled with strict confidentiality. Pharmacists have a right to unbiased decision-making processes, free from the undue influence of reports which are generally preliminary in nature and often come to unsupported conclusions.
It is important to challenge whether PSU officers are truly authorised to disclose these reports and whether such actions respect the confidentiality and privacy of the information contained within them. Pharmacists are entitled to due process and a proper and fair hearing. Failing to challenge these points can cause significant impacts to the pharmacist and their career.
If you are subject to investigations by the PSU, have had a PSU officer lodge a complaint against you with the Council and/or Commission or you want more information, contact Andrew Lambros or Maurice Hannan of Bennett & Philp Lawyers for advice.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific circumstances. It is intended for information purposes only and should not be regarded as legal advice. Further professional advice should be obtained before taking action on any issue dealt with in this publication.