Disciplinary law: a 2-month striking off the roll imposed to a pharmacist guilty of falsely documenting his file and making illegal insurance claims
In a decision rendered in August 2017, the Disciplinary Council confirmed that when determining what sanction needs to be imposed in a given case, its members must remember that the professional’s right to exercise his profession is a privilege that is counter-balanced by certain ethical obligations. Concerning the particular infractions in question, namely the falsification of files, the appropriation of medication without a prescription and the false insurance claims, the Disciplinary Council revealed that the professional’s lack of judgement in the circumstances is equivalent to his lack of integrity, and acting with a lack of integrity is a serious infraction deserving of a temporary striking off the roll (Pharmaciens (Ordre professionnel des) v. Alshamaah, 2017 CanLII 53907 (QC CDOPQ)).
THE FACTS
In 2016, a pharmacist faced eighteen counts before the Ordre des pharmaciens du Québec’s Disciplinary Council, accusing him of having lacked integrity when appropriating, for himself and certain members of his family, medication without the necessary prescriptions, contrary to section 55 of the Code of ethics of pharmacists.
The pharmacist in question held a Masters degree in medication control from Syria and had obtained his permit to practice in Québec in 2009, after having followed and passed the equivalent courses. He admits that several times since 2009 and up until the end of 2014, he failed to fulfill his obligations with integrity by including in his own pharmaceutical file, as well as those of his son, his ex-wife and his current wife, verbal prescriptions that had not validly been given by a physician. More specifically, the pharmacist falsely used the names and permit numbers of physicians.
He also admits having filed false insurance claims with the Canadian Blue Cross, in hopes of illegally obtaining reimbursement for said prescriptions.
The pharmacist filed a guilty plea before the Disciplinary Council during the first day of the hearing and the parties proceeded by presenting their case in relation to the sanction to be imposed.
THE DISCIPLINARY COUNCIL’S DECISION
After having considered the arguments invoked by both parties, the Disciplinary Council draws the following conclusions:
1. When determining the sanction, the Disciplinary Council must remember to impose a just and reasonable sanction that aims to protect the public, dissuade the professional from committing future misconducts and discourage other members of the profession from imitating him.
2. The severity of the sanction to be imposed is determined in reasonable proportion to the objective gravity of the fault committed.
3. According to the Disciplinary Council, using the name and permit number of a physician in order to fabricate a false prescription, and illegally receiving a reimbursement from an insurance company are serious misconducts that are at the very heart of the pharmaceutical profession.
4. However, the Disciplinary Council recognised that the pharmacist in question did not have addiction or abuse problems and had not claim for medication that was falsely described or for services that were not rendered, and considered these elements as mitigating factors.
5. Although the pharmacist’s competencies were not put into question, the counts he pled guilty to are deserving of a temporary striking off the roll, in accordance to the relevant case law on the subject.
6. Judging the four-month striking off the roll to be punitive and unreasonable in the circumstances, and the two-week striking off the roll to not adequately reflect the seriousness of the infractions at hand, the Disciplinary Council chose to impose a two-month striking off the roll.
THE LESSONS TO BE LEARNED
1. The sanction must aim to achieve the following objectives: dissuade any repeat offences, provide an example for all other members of the profession and take into consideration the individual and global characters of said sanction.
2. Acting with a lack of integrity, regardless of the profession, always constitutes a serious infraction.
3. Infractions dealing with the falsification of patient files, the appropriation of medication without a prescription and the receipt of illegal reimbursements from an insurer merit a striking off the roll Dubé Légal inc., Montréal disciplinary law lawyers.
