In the regulatory discipline context, discipline cases often arise when registrants are alleged to have engaged in some sort of misconduct, these could be: violating patient privacy, or entering into personal and/or sexual relationships with patients, or even hiring patients to work in the registrant’s business. The running theme of these circumstances are they all tend to involve the registrant actively doing something improper. But, what about the “opposite” situation? When a registrant has not done something? Turns out, not noticing “red flags” and being an unwitting dupe can also be misconduct.
In Ontario (College of Pharmacists) v. Bijanzadeh, 2019 ONCPDC 25 (“Finding”), the Discipline Committee of the Ontario College of Pharmacists (the “DC”) found a pharmacist committed professional misconduct by being duped into dispensing large amounts of narcotics to a sophisticated drug trafficking ring. In the subsequent penalty hearing, Ontario (College of Pharmacists) v. Bijanzadeh, 2021 ONCPDC 24 (“Penalty”), in 2021, the DC, among other penalties, suspended the Pharmacist for a period of fourteen months and imposed various conditions, particularly a five-year prohibition on dispensing narcotics and various educational requirements.
The key facts noted by the DC were as follows:
- The Pharmacist was the sole owner of a small Pharmacy consisting of herself, a pharmacy assistant (who was a family member), and a locum pharmacist (Finding at paras. 8, 23).
- The Pharmacist was the subject of a police investigation into a drug trafficking ring, whose source of narcotics was found to be the Pharmacy in question. The police identified two prescribers, real physicians whose names were fraudulently used, who together issued about 5300 narcotic prescriptions for about 141 “patients” between 2012 and 2015; for illustration, the College investigator looked at a sample of just 15 “patients”, collectively, they were prescribed 213,090 Oxycocet products, 91,380 Oxycodone products, and 17,120 Fentanyl patches – remember, this is just 15 out of 141 (Finding at paras. 9-11, 13, 43).
- Ultimately, following their investigation, the police determined that the Pharmacist was not knowingly involved in the trafficking or proscription forgeries — the Pharmacist was never charged with any offence (Finding at paras. 14).
While there were no criminal charges and the DC noted that the Pharmacist may have been “duped”, the DC certainly found there was misconduct, primarily in the form of failing to see the veritable smorgasbord of “red flags” that were right in front of her (Finding at paras 5, 214, 217). Among the many “red flags” are (Finding at paras. 16(14), 210):
- high doses and large quantities of narcotics;
- an influx of patients to the Pharmacy from one prescribing physician;
- filling prescriptions for patients who did not reside close to the Pharmacy;
- five patients in the same household all taking the same high doses of narcotics;
- all patients of the two prescribing physicians taking the same three or two medications; and
- multiple prescriptions of high doses of fentanyl and multiple early refills.
The DC noted that the Pharmacist worked at a small pharmacy where she dispensed all of the prescriptions and had she applied the standards of practice and guidelines to help authentic prescriptions, she should have quickly caught on that something was very wrong (Finding at para. 211). The Pharmacist’s failure to see the “red flags” led to a massive influx of potent narcotics into the black market compromising public safety (Finding at para. 213).
Most perplexingly was, despite the seriousness of whole affair, the Pharmacist was of the “very strong belief [emphasis added]” that she had done nothing wrong and had done all she could have as a pharmacist (Finding at para. 212). In particular, the Pharmacist was adamant that as a community pharmacist it was not her role to obtain patients’ medical information and her belief that patients’ medical diagnoses are private and she, despite being their pharmacist, is not entitled to them (Finding at para. 212). The DC promptly rejected her understanding and highlighted that it was not consistent with the expectations of a pharmacist, which is that they serve as “gatekeepers” to potent narcotics ought to make inquiries or refuse to fill prescriptions as appropriate (Finding at paras. 212, 219). For full context, during the penalty proceeding about two years later, the DC found the Pharmacist to have demonstrated an understanding of the seriousness of her misconduct and that she was ashamed and embarrassed she was embroiled in the scheme (Penalty at para. 89).
Despite having also considered various mitigating factors – that the Pharmacist may have been “duped”, that the police did not believe she was involved (in fact, at Penalty para. 85, the police thought the Pharmacist was “extremely naïve and ignorant and did not pay attention…”), and that she had cooperated with the police investigation and prosecution of the traffickers (which did lead to convictions) – the DC ultimately decided that the Pharmacist’s conduct was dishonourable and unprofessional due to her failure to exercise appropriate diligence, to make appropriate inquiries, and to see the “red flags” (paras 217-9).
The penalty proceeding of this matter was appealed to the Ontario Superior Court of Justice in 2022, where the court, in a very brief decision at para. 6, held that the DC’s penalty decision was well within the range of reasonable.
The key lesson for practitioners here: it is not enough to simply avoid engaging in misconduct, proper practice requires spotting “red flags” and not becoming a dupe.
Ontario (College of Pharmacists) v. Bijanzadeh, 2019 ONCPDC 2
Ontario (College of Pharmacists) v. Bijanzadeh, 2021 ONCPDC 24
Victor Chan