Pharmacists and pharmacy owners can face serious regulatory action following a complaint to a health regulator. The actions you undertake and the way you respond after receiving a notification of a complaint can significantly influence the outcome.
Taking a proactive approach can avoid a long and expensive prosecution in a tribunal where the registration of the pharmacist might be suspended or even cancelled.
Recent Matter
We recently acted for a pharmacist client who faced a complaint to the Queensland Office of the Health Ombudsman (OHO) regarding dispensing practices. The matter was later referred to the Australian Health Practitioner Regulation Agency (Ahpra) and the Pharmacy Board of Australia. Although our client initially had legal representation through their professional indemnity insurer, they were dissatisfied with the advice provided, particularly as the matter escalated to Ahpra.
Upon taking over the file it was obvious to us that the previous solicitor had simply responded to the specific dispensing complaint. It appeared likely to us that Ahpra was going to take further action against our client.
After reviewing the matter, we advised our client to carry out a review of their practices, develop better procedures and systems, and to also implement training for all of the staff in the pharmacy to ensure issues like this would not arise again. We worked with our client to make sure that these steps were carried out correctly.
We also made submissions to Ahpra demonstrating all the steps that had been undertaken to address the underlying concerns that gave rise to the complaint in the first place.
Taking all of this into account, Ahpra ultimately only issued our client with a caution when it could have (and quite possibly would have) taken serious legal action in a tribunal if these steps had not already been done prior to the investigation being completed.
Common Errors
When pharmacy clients come to us after receiving advice from other firms, we often find that the previous lawyers focused solely on preparing a written response to the factual circumstances of the complaint.
Pharmacists who respond themselves often take a similar approach.
This narrow approach overlooks a critical opportunity to demonstrate to regulators that the pharmacist has reflected on the incident, taken corrective action, and strengthened their practice during the period following the notification.
There is generally time to take all these steps after the notification is given if you act promptly.
While regulators can be difficult to deal with, often the approach of working with the regulator and showing that not only is the pharmacist willing to improve but has taken substantial steps already to improve their practices broadly can resolve the matter promptly.
Other common errors however are actually where proper procedural issues with a complaint are not properly raised prior to responding to the substance of a complaint or attending a meeting or interview about the complaint.
When it's appropriate, a response to a complaint or notification should not be limited to addressing the allegations. It should also consider the broader picture, including steps to protect your professional registration and reputation, improve systems and procedures, and show regulators that meaningful action has been taken to prevent future issues.
It's important to obtain legal advice from a law firm that fully considers the matter and can then advise you on how to properly deal with a compliant.
Why a Tailored, Holistic Response Matters
Ahpra and the Pharmacy Board assess not only the incident in question but also how you respond and what actions you take after being notified. A generic or incomplete response may increase the risk of more serious outcomes, such as conditions being imposed or a public reprimand.
Effective legal advice should firstly consider if the complaint has been properly made and if it should be challenged. If it is considered that a proper response should be made, then the response should:
- address all issues raised in the notification;
- explain the context and circumstances of the incident;
- demonstrate understanding of professional obligations and PBS supply rules; and
- identify and demonstrate proactive steps you can take (and hopefully have taken already) to remediate and prevent recurrence.
What Makes a Strong Response
An effective response is more than just admitting, denying, or explaining the allegations. It should demonstrate that you have:
- acknowledged the seriousness of the complaint;
- reflected on the incident and taken steps to prevent similar issues;
- reviewed, updated, and implemented improved systems and processes in your pharmacy;
- completed further continuing professional development (CPD) or training, and ensured staff are appropriately trained and supervised; and/or
- engaged independent consultants or auditors (where appropriate) to review and improve policies, procedures, and compliance practices.
By demonstrating proactive action during the investigation stage, you improve your prospects of achieving a favourable outcome, such as a caution or warning without an entry on the public register.
Understanding the Stakes
An Ahpra notification can have serious and lasting consequences, including:
- legal action being taken to suspend or cancel your registration;
- conditions on the national public register; and
- reputational damage affecting your professional relationships and business.
Seeking early, strategic advice that considers both the complaint and the bigger picture can make a significant difference to the final outcome.
How Bennett & Philp Can Help
Our pharmacy law team has extensive experience assisting pharmacists and pharmacy owners to deal with any form of professional complaint. We take a comprehensive approach, by:
- reviewing allegations and considering potential legal grounds to challenge a notification;
- where required prepare a comprehensive, well-structured response;
- identify and implement proactive actions during the investigation stage;
- preparing submissions setting out all the positive steps already taken to address any concerns of the regulator; and
- guide you through the regulatory processes to protect your registration and reputation.
Contact Andrew Lambros, Managing Director, for advice on responding to a complaint or notification.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
