Pharmacist cleared of professional misconduct after shoving child

A pharmacist’s assault of a child was an “uncharacteristic lapse of judgment”, a Canberra tribunal said as it cleared him of professional misconduct charges.

The man, who Region has chosen not to name, assaulted a child who had been bullying his son for more than 18 months.

Once court proceedings finished, the Pharmacy Board sought to have him disciplined through the ACT Civil and Administrative Tribunal’s powers (ACAT).

However, ACAT’s Presidential Member Juliet Lucy said that while the assault was a “breach of accepted standards”, it did not cross the line into professional misconduct.

According to the decision, the assault occurred in March 2022, after the man picked up his son from after-school care.

On that day, the man’s son told his father of several bullying incidents, such as pouring water over his bag and moving his belongings where he couldn’t reach them.

The man went back into the centre to report the allegations to the educator in charge at the centre. Afterwards, the pharmacist saw his son “wince with pain” and saw marks on his son’s back.

He went back into the centre and went to the child who was bullying his son. He shouted at the child and shoved the boy, who fell backwards onto a pile of rocks.

The man then left the centre after being asked to by an educator.

In December 2022, the man was found guilty of common assault, though the Magistrates Court ordered that the charge be dismissed.

Under the Crimes (Sentencing) Act 2005, the court can dismiss a charge when someone has been found guilty but the court is “satisfied that it is not appropriate to impose any punishment (other than nominal punishment)” onto them.

In its submissions to ACAT, the Pharmacy Board argued that the assault was professional misconduct as it was “conduct that is inconsistent with that of a registered pharmacist”.

The Board argued that to determine if the conduct was inconsistent, the tribunal should consider the behaviour in isolation, without considering the person’s character.

However, the tribunal did not accept that approach.

“That is, however, to misstate the test,” Ms Lucy said.

“The test is whether the conduct is inconsistent with [the man] being a fit and proper person to hold registration in the profession of pharmacy.”

Instead, Ms Lucy said the wider circumstances surrounding the behaviour had to be taken into consideration to judge if someone’s behaviour was professional misconduct.

“The circumstances include: that [the man’s] son had been bullied over a prolonged period by the classmate; that [his] repeated attempts to address this with the school had been ineffective; that [he] had heard his son describe what appeared to be a particularly cruel episode of bullying by the classmate; and that immediately before the assault, [he] witnessed his son wincing in pain from the injury apparently caused by the classmate and saw the red marks on his son’s back,” she said.

Also, Ms Lucy said the man was affected by his mental health at the time of committing the assault, such as his own history of being bullied as a child.

“[The man] would likely have felt protective of his son, frustrated with the school’s inability to deal effectively with the bullying and angry about the reported behaviour of the classmate,” she said.

Additionally, the Pharmacy Board also alleged the man breached several provisions of a code of conduct that was in force at the time of the assault.

However, the tribunal found the provisions referred to a practitioner acting in their professional life, as opposed to their personal life.

The Pharmacy Board alleged the man had failed to act in a way that would maintain public trust in pharmacists.

“I do not consider that the public nature of the conduct, or the circumstance that it occurred at a school, is relevant to whether it constituted a failure to act with integrity,” she said.

“I am not satisfied that the Pharmacy Board has established that [the man’s] conduct in committing the assault constituted a failure to act with honesty and integrity.”

In the decision, Ms Lucy described the assault as an “isolated incident”, with the man having no history of other violent acts.

“Having regard to [the man’s] long history of appropriate behaviour in his professional and personal capacities, it could not be concluded, on the basis of the commission of the assault, that [he] posed a risk to health or safety of the public in the exercise of his professional duties,” she said.

An application for costs from the Pharmacy Board was also dismissed.