Under the Pharmacy Business Ownership Act 2001 (Qld) (“Act”), pharmacists are required to notify the Queensland Department of Health (“Queensland Health”) of changes of ownerships of a pharmacy business and of changes of ownership particulars of a pharmacy business. Ownership particulars include the pharmacy name, address or shareholding. Notifications are made using the Queensland Health approved form.
Notifying Queensland Health of a change of ownership or ownership particulars was historically an administrative formality rather than an administrative burden. However in early 2019, and in response to the report following the Parliamentary Inquiry into the establishment of a pharmacy council and transfer of pharmacy ownership in Queensland, Queensland Health changed its approved forms and the way it processes notifications provided under the Act.
Since early 2019, many Queensland pharmacists have received a request for information from Queensland Health after lodging a notification in the approved form. If the request was not addressed or was not addressed to the satisfaction of Queensland Health, they’re followed by a notice issued under section 172(1) of the Act (“Notice”) requiring the pharmacist to produce specific documents. Failing to comply with a Notice carries a maximum penalty of $6,672.22.
A number of our clients received Notices which called for commercial type documents to be produced, such as a copy of a business purchase contract and a copy of t lease transfer documents.
The issue of these Notices caused us to carefully consider the powers of the Queensland Health inspectors under the Act.
Section 172(1) provides that an inspector may require a person to produce to the inspector for inspection “a document issued to the person under this Act”. Following careful consideration, we came to the view that the inspector’s powers are limited to the production of a document “issued…under the Act“. Commercial and/or transactional documents, such as contracts and transfer documents, are not documents issued under the Act.
Concerned by this, we wrote to the Inspector of Queensland Health to raise this issue and to seek clarification on why the Inspector believed he had the power to request production of documents that were commercial and/or transactional in nature.
On 7 August 2019, we received a response in which the Inspector advised:
- upon receipt of our letter, Queensland Health immediately ceased issuing Notices;
- documents of a commercial or transactional nature are not considered documents issued under the Act and therefore are not documents that can be required pursuant to a Notice;
- Queensland Health are in the process of reviewing any outstanding Notices so that they may be withdrawn.
Queensland Health is to be commended for its prompt consideration of this issue. As a consequence of our correspondence, Queensland pharmacists can expect the number of Notices being issued to reduce or for the Notices to be limited to documents which the Inspector can properly request, which is limited.
Pharmacists who have received a s172 Notice in recent weeks should carefully consider the Notice and the category of documents to be produced before deciding whether there is a valid requirement to comply with the Notice. If the requested documents are not limited to documents issued under the Act, such as documents that go to a pharmacy approval or registration, it is likely the Notice may go too far and will be withdrawn by Queensland Health.
Our experience with Queensland Health highlights the importance for pharmacists to obtain legal advice when issued with compliance notices, whether from Queensland Health or any regulator, on whether the notice is valid and one they are legally required to comply with before taking steps to provide commercial or often confidential documents. There is no denying that Queensland Health has an important role to play under the Act and that pharmacists have an obligation to comply with the Act. However, correspondence should not be taken at face value. Careful examination is required to protect business interests and to ensure the proper administration of the Act.
Should you have any queries regarding the issue of s172 Notices or your obligations to comply with a Notice, please contact us on (07) 3370 0200 or via email.
This article is intended to be for general information only. It does not constitute legal advice nor does it establish a relationship of lawyer and client. Specific circumstances or changes in law may vary the accuracy or applicability of the information published. We recommend seeking specific legal advice particular to your circumstances before taking any action, or refraining from taking any action, on any issue addressed in this article.