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Statutes of Newfoundland and Labrador 2004


Statutes of Newfoundland and Labrador 2004 Chapter 34

CHAPTER 34

AN ACT TO AMEND THE PHARMACEUTICAL ASSOCIATION ACT, 1994

(Assented to December 16, 2004)

Analysis

1. Long title R&S

2. S.1 R&S
Short title

3. S.2 Amdt.
Definitions

4. S.4 R&S
Association established

5. Ss.5&6 R&S

PART I.1
LICENSING BOARD
5. Licensing board
5.1 Appointed members
6. Objects

6. S.7 Amdt.
Powers

7. S.8 R&S
Meetings of the board

8. S.8.1 Added
Annual report

9. S.9 R&S
By-laws

10. Ss.10 to 12 Rep.
10. Council
11. Council members
12. Quorum

11. S.13 R&S
Committees

12. S.14 R&S
Regulations

13. S.14.1 Amdt.
Fees and forms

14. S.15 Amdt.
Registers

15. S.16 Amdt.
Entry on register

16. S.17 Amdt.
Pharmacy information

17. S.18 Amdt.
Certificate of registration

18. S.20 Amdt.
Registration of students

19. S.21 Amdt.
Registration of pharmacists

20. S.23 Amdt.
Prohibitions

21. S.24 Amdt.
Prohibitions

22. S.25 Amdt.
Pharmacy licence

23. S.27 Amdt.
Responsibility

24. S.29 R&S
Inspection

25. S.30 Amdt.
Cessation of operation

26. S.32 R&S
Action prohibited

27. S.33 Rep.
Liability of members is limited

28. S.34 Amdt.
Notices

29. S.34.1 R&S
Compliance with request for information

30. PART IV R&S

PART IV
DISCIPLINE

35. Definitions
36. Committees
37. Allegation
38. Effect of filing
allegation
39. Complaints
authorization
committee
40. Adjudication tribunal
41. Hearing
42. Guilty plea by
respondent
43. Powers of adjudication
tribunal
44. Filing and publication
of decisions
45. De-registration and
suspension
46. Failure to comply
47. Supplementary hearing
48. Costs of board
49. Collection of fine
50. Appeal to Trial
Division

31. S.59 Amdt.
Substitute drugs

32. S.60 Amdt.
Price

33. S.64 Amdt.
Advisory committee

34. S.65 R&S
Contravention

35. S.68 Rep.
Fines

36. Transitional

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


SNL1994 cP-12.1
as amended

1. The Long Title of the Pharmaceutical Association Act, 1994 is repealed and the following substituted:

"AN ACT TO REGULATE THE PRACTICE OF PHARMACY"

2. Section 1 of the Act is repealed and the following substituted:

Short title

1. This Act may be cited as the Pharmacy Act.

 

3. (1) Paragraph 2(a) of the Act is repealed and the following substituted:

(a) "association" means the Pharmacists' Association of Newfoundland and Labrador Inc. referred to in section 4;

(a.1) "board" means the Newfoundland and Labrador Pharmacy Board referred to in section 5;

(2) Paragraphs 2(c) and (d) of the Act are repealed.

(3) Section 2 of the Act is amended by adding immediately after paragraph (d) the following:

(d.1) "department" means the department presided over by the minister;

(4) Paragraph 2(i) of the Act is repealed.

(5) Paragraph 2(k) of the Act is repealed and the following substituted:

(k) "member" means a person elected or appointed as a member of the board;

(6) Paragraph 2(l) of the Act is repealed and the following substituted:

(l) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(7) Paragraph 2(q) of the Act is repealed and the following substituted:

(q) "secretary-registrar" means the person appointed as secretary-registrar by the board under section 5; and

 

4. Section 4 of the Act is repealed and the following substituted:

Association established

4. (1) The Pharmacistsí Association of Newfoundland and Labrador Inc. is established as a corporation without share capital for the purposes of Part XXI of the Corporations Act.

(2) The objects of the association shall include, notwithstanding anything in the by-laws of the association,

(a) promoting and advancing pharmacy and related disciplines, increasing the knowledge, skill, standards and proficiency of its members in the practice of pharmacy and maintaining the honour and integrity of the profession of pharmacy;

(b) promoting liaison among the various branches of pharmacy; and

(c) negotiating with providers of prescription drug payment programs.

(3) A pharmacist who pays the membership fee set by the association is a member of the association notwithstanding anything in the by-laws of the association.

(4) Notwithstanding its incorporation under this Act, the association shall be governed by the Corporations Act for all purposes, including a change of the name of the association.

 

5. Sections 5 and 6 of the Act are repealed and the following substituted:

PART I.1
LICENSING BOARD

Licensing board

5. (1) The Newfoundland Pharmaceutical Association is continued under the name Newfoundland and Labrador Pharmacy Board as a corporation without share capital for the purposes of Part XXI of the Corporations Act.

(2) The board shall consist of:

(a) 7 members elected from and by registered pharmacists in accordance with the by-laws;

(b) 2 members appointed under section 5.1 who are not registered pharmacists; and

(c) the secretary-registrar of the board appointed by the other members of the board in accordance with the by-laws, who shall not vote on a matter before the board, its executive or a committee of the board.

(3) A member of the board of the association is ineligible to be a member of the board.

(4) A member may be elected for a term set by the by-laws which shall not exceed 3 years and is eligible to be re-elected, but shall not be a member for more than 9 consecutive years.

(5) An elected member may resign by written notice to the board.

(6) Where an elected member resigns, dies or becomes incapable of performing his or her duties, the remaining members shall appoint a replacement to serve until the next annual general meeting.

(7) Elected members shall serve without payment for their services, but their travel and other expenses associated with their duties as members shall be paid by the board, in accordance with the by-laws.

(8) The board may pay the secretary-registrar for performing his or her duties under this Act, in accordance with the by-laws.

(9) The board shall elect an executive from the members including a chairperson who chairs meetings of the board, a vice-chairperson who shall preside over meetings in the absence of the chairperson and other officers as provided for in the by-laws.

Appointed members

5.1 (1) The minister shall appoint 2 members of the board who are not registered pharmacists who are suitable to represent the public interest.

(2) A person appointed under subsection (1) holds office for a term of 3 years and is eligible to be re-appointed.

(3) Where a person appointed under subsection (1) holds office for a period of 9 consecutive years the person is not eligible for appointment as a member of the board until the expiration of 12 months from the end of the year in which he or she was last a member.

(4) Where the term of office of a person appointed under this section expires, he or she continues to be a member of the board until re-appointed or replaced.

(5) The board shall pay the expenses of a person appointed to the board under this section in accordance with guidelines established by the Lieutenant-Governor in Council.

(6) A person appointed under subsection (1) may be removed from office by the minister before the expiration of his or her term of office and no compensation shall be paid to him or her other than an amount owing under subsection (5).

(7) A person appointed under subsection (1) may resign from the board by written notice to the minister.

Objects

6. The objects of the board are

(a) to establish and maintain standards of professional conduct, knowledge, education, qualification, skill and ethics among registered pharmacists;

(b) to assure to the general public, proficiency and competency in the practice of pharmacy;

(c) to regulate and govern registered pharmacists and the practice of pharmacy;

(d) to establish, maintain and develop standards for the operation of pharmacies;

(e) to administer this Act and perform duties and exercise powers that are imposed or conferred on the board; and

(f) to serve and protect the public interest in all matters relating to the sale of drugs and the practice of pharmacy.

 

6. (1) Section 7 of the Act is amended by striking out the word "association" wherever it occurs and substituting the word "board".

(2) Paragraphs 7(e) to (g) of the Act are repealed.

(3) Paragraph 7(i) of the Act is amended by striking out the word "members" and substituting the word "persons".

(4) Paragraph 7(l) of the Act is amended by striking out the word "member" and substituting the word " pharmacist".

 

7. Section 8 of the Act is repealed and the following substituted:

Meetings of the board

8. (1) A quorum of the board is 5 members, one of whom shall be an appointed member and a majority vote of those present at a meeting decides a question.

(2) Where there is an equality of votes the chairperson of the board shall cast a second deciding vote.

(3) The board shall hold an annual general meeting, to which all registered pharmacists shall be invited, to elect the members of the board.

(4) At the annual general meeting the board shall appoint an auditor to audit the accounts of the board and report on the financial statement prepared by the board.

(5) Except where prohibited in the by-laws, a member of the board may, where all the members consent, participate in a meeting of the board by means of the telephone or other telecommunication device that permits all persons participating in the meeting to communicate with each other.

(6) The board may in its by-laws provide for voting by registered pharmacists at the annual general meeting to be held by mail or electronic means.

 

8. The Act is amended by adding immediately after section 8 the following:

Annual report

8.1 (1) The board shall prepare and submit to the minister before July 1 in a year

(a) a report on the activities of the board; and

(b) the board's audited financial statements.

(2) Where the board fails to comply with subsection (1), the board is guilty of an offence and on summary conviction may be fined $1,000.

 

9. Section 9 of the Act is repealed and the following substituted:

By-laws

9. (1) The board may make by-laws not inconsistent with this Act respecting

(a) the holding of its meetings and the procedure at those meetings;

(b) the appointment, remuneration and duties of the secretary-registrar;

(c) the election of members under subsection 5(2) and setting the terms of office;

(d) the payment of travel and other expenses of elected members;

(e) the election of an executive under subsection 5(9);

(f) a code of ethics which may include a definition of "professional misconduct" and "conduct unbecoming" for the purposes of Part IV and methods of advertising considered advisable for pharmacists and pharmacies;

(g) the remuneration and payment of travel expenses of members of adjudication panels;

(h) the application and variation of the rules of evidence at hearings held under section 41;

(i) limiting the participation of members at a meeting of the board by telephone or other telecommunications device under section 8;

(j) providing for voting at the annual general meeting of the board by mail or electronic means;

(k) the types of registers to be kept by the secretary-register and the information to be maintained on those registers;

(l) the appointment and definition of duties of examiners;

(m) the issuance and term of certificates and licences; and

(n) information required from applicants for registration or licensing.

(2) A by-law may be made, amended or repealed at a meeting of the board provided that 30 days notice, in writing, of the making, amendment or repeal of the by-law and of the meeting are given to members.

(3) The by-laws of the Newfoundland Pharmaceutical Association in operation at the coming into force of this Act shall be the by-laws governing the board until revoked or amended by the board in accordance with this section.

(4) The board shall have its by-laws available for inspection by the public on reasonable notice and at reasonable hours.

 

10. Sections 10, 11 and 12 of the Act are repealed.

 

11. Section 13 of the Act is repealed and the following substituted:

Committees

13. The board may appoint committees to carry out duties and functions directed by the board.

 

12. Section 14 of the Act is repealed and the following substituted:

Regulations

14. (1) The board may, with the approval of the minister, make regulations

(a) respecting the registration of pharmacy students;

(b) respecting the educational, internship, practical training or other requirements for registration and for the standard of the practice of pharmacy, including provisions for mandatory continuing education of registered pharmacists;

(c) respecting all aspects of the dispensing, selling, handling and destruction of drugs;

(d) prescribing courses of study, practical training requirements and examinations;

(e) prescribing, with respect to drugs, drug products and substances

(i) schedules,

(ii) conditions for dispensing and sale,

(iii) concentrations and manner of preparation, and

(iv) control to be exercised by a person;

(f) respecting the adoption of schedules enacted under the Food and Drugs Act (Canada) and the Controlled Drugs and Substances Act (Canada);

(g) respecting the maintenance of prescriptions, prescription copies, records, the use of computers or other technology and the information to be collected and retained by computer or other technology;

(h) respecting the transfer of records, prescriptions or other information by facsimile or other technology;

(i) prescribing

(i) the tasks within the practice of pharmacy that may be delegated by a registered pharmacist to a pharmacy student or person within a specified class,

(ii) the characteristics and qualifications of the specified class of persons referred to in subparagraph (i),

(iii) the level of supervision required where delegation is permitted under subparagraph (i), and

(iv) other conditions on the delegation of tasks;

(j) respecting alternative dispute resolution for the purposes of Part IV and the procedure for that resolution;

(k) prescribing time limits for events in the disciplinary process under Part IV, including time limits for:

(i) the filing of an allegation,

(ii) the resolving of an allegation by the secretary-registrar,

(iii) the conduct of an investigation under section 39,

(iv) consideration of an allegation by the complaints authorization committee following completion of an investigation,

(v) responding to a complainant and respondent at each stage of the process,

(vi) the conduct of a practice investigation under subparagraph 39(3)(c)(ii),

(vii) the appointment of an adjudication tribunal under section 40, and

(viii) the conduct of a hearing and the filing of a decision or order by an adjudication tribunal following completion of the hearing;

(l) prescribing the duties of a pharmacist in charge of a pharmacy; and

(m) generally, to give effect to the purpose of this Act.

(2) Notwithstanding subsection (1), the minister may make regulations to prescribe time limits for events in the disciplinary process under Part IV where the board does not do so within a time the minister considers reasonable.

 

13. Section 14.1 of the Act is amended by striking out the word "association" and substituting the word "board".

 

14. (1) Subsection 15(1) of the Act is repealed and the following substituted:

Registers

15. (1) The secretary-registrar shall maintain registers containing the names of those qualified and registered to practise pharmacy in the province and other registries and information required by the by-laws.

(2) Section 15 of the Act is amended by adding after subsection (2) the following :

(3) The board shall have its registers available for inspection by the public on reasonable notice and at reasonable hours.

 

15. (1) Subsection 16(1) of the Act is amended by striking out the word "council" and substituting the word "board".

(2) Subsection 16(3) of the Act is repealed and the following substituted:

(3) A person or corporation may appeal a decision of the secretary-registrar regarding entry on a register of that person or corporation to the board by filing a notice of appeal with the chairperson at the offices of the board within 30 days of receiving notice of the decision.

 

16. Subsection 17(1) of the Act is amended by striking out the word "regulation" and substituting the words "the by-laws".

 

17. Section 18 of the Act is amended by adding the following immediately after subsection (2):

(3) It is a condition of the issuing of a certificate of registration under this section that the person to whom the certificate is issued be a member of the association or within one month of the date of issuing the certificate become a member of the association, and the failure of that person to comply with this condition makes the certificate void from that date.

 

18. Section 20 of the Act is amended by striking out the word "council" and substituting the word "board".

 

19. (1) Section 21 of the Act is amended by striking out the word "association" wherever it occurs and substituting the word "board".

(2) Paragraph 21(1)(c) of the Act is amended by striking out the word "council" and substituting the word "board".

(3) Paragraph 21(2)(a) of the Act is amended by striking out the word "regulations" and substituting the word "by-laws".

(4) Subsection 21(2) of the Act is amended by adding immediately after paragraph (b) the following:

(b.1) provides proof that he or she has obtained professional liability insurance coverage in a form and amount satisfactory to the board;

(5) Paragraph 21(2)(c) of the Act is amended by striking out the word "council" and substituting the word "board".

 

20. Subsection 23(2) of the Act is repealed and the following substituted:

(2) A pharmacist may, where enabling regulations are made under section 14, delegate tasks within the practice of pharmacy to a pharmacy student or a person within a prescribed class, under the prescribed level of supervision and in accordance with other conditions that may be imposed by the regulations.

 

21. Paragraph 24(1)(b) of the Act is repealed and the following substituted:

(b) employ a person who is not a pharmacist or otherwise entitled under this Act to dispense a prescription or prepare or compound drugs;

 

22. Subsection 25(1) of the Act is amended by striking out the words "carry out the practice of pharmacy" and substituting the words "dispense or sell a drug".

 

23. Subsection 27(3) of the Act is repealed and the following substituted:

(3) The duties of the pharmacist in charge shall be as set out in the regulations.

(4) In this section, the pharmacist in charge of a pharmacy is the person designated on the licence issued under section 25.

 

24. Section 29 of the Act is repealed and the following substituted:

Inspection

29. The secretary-registrar or a person authorized by him or her may inspect an existing or proposed pharmacy.

 

25. Subsections 30(1) and (2) of the Act are amended by striking out the word "association" wherever it occurs and by substituting the word "board".

 

26. Section 32 of the Act is repealed and the following substituted:

Action prohibited

32. An action for damages shall not lie against the board, a committee established under this Act, the disciplinary panel, an adjudication tribunal or the individual members of those bodies, the secretary-registrar, or an officer or employee of the board for

(a) an act or failure to act, or a proceeding initiated or carried out in good faith under this Act, or carrying out their duties or obligations as an officer, employee or member under this Act; or

(b) for a decision or order made or enforced in good faith under this Act.

 

27. Section 33 of the Act is repealed.

 

28. Section 34 of the Act is amended by adding immediately after subsection (2) the following:

(3) A notice or demand sent by mail to a person is considered to be received by that person

(a) when they actually receive the notice; or

(b) except when postal services are not functioning, on the expiry of 10 days after the date it was sent,

whichever is earlier.

 

29. Section 34.1 of the Act is repealed and the following substituted:

Compliance with request for information

34.1 (1) For the purpose of the administration of the Newfoundland and Labrador Prescription Drug Program, including for the purpose of processing, monitoring, verifying or reimbursing claims for payment under the program and program development and evaluation, and upon the request of an employee of the department authorized by the minister, a pharmacist shall provide the information that the employee requests with respect to prescription drugs prescribed to a resident of the province and received by that resident with the assistance of the Newfoundland and Labrador Prescription Drug Program.

(2) An employee of the department authorized to do so by the minister may provide the information obtained under subsection (1) to an agent of the department approved by the minister for the purpose who may use it for the purposes for which it was obtained on behalf of the minister.

(3) The information requested under subsection (1) may include

(a) prescriptions, patient records, notes and other documents held by the pharmacist; and

(b) photocopies of the information referred to in paragraph (a).

(4) An action for damages does not lie against a pharmacist or a pharmacy solely because the pharmacist provides the information requested of him or her under subsection (1).

(5) A pharmacist is not guilty of professional misconduct solely because that pharmacist provided information requested of him or her under subsection (1).

 

30. Part IV of the Act is repealed and the following substituted:

PART IV
DISCIPLINE

Definitions

35. In this Part,

(a) "allegation" means a written document alleging that a person has engaged in conduct deserving of sanction;

(b) "complainant" means a person making an allegation described in section 37;

(c) "conduct deserving of sanction" includes

(i) professional misconduct,

(ii) professional incompetence,

(iii) conduct unbecoming a pharmacist, and

(iv) acting in breach of this Act, the regulations, or the code of ethics made under section 9;

(d) "costs incurred by the board" includes

(i) out of pocket expenses incurred by or on behalf of the board,

(ii) amounts paid by the board to adjudication tribunal members as remuneration and for expenses, and

(iii) the actual cost of legal counsel for the board and the adjudication tribunal;

(e) "disciplinary panel" means the panel of persons appointed under section 36 from which the members of an adjudication tribunal are chosen; and

(f) "respondent" means a registered pharmacist or a former registered pharmacist against whom an allegation is made.

Committees

36. (1) The board shall appoint the chairperson, vice-chairperson and members of the complaints authorization committee, and the registered pharmacists to serve on the disciplinary panel, one of whom shall be appointed the chairperson.

(2) The complaints authorization committee shall consist of at least 3 persons, all of whom shall be members of the board, and at least one of whom shall be a member who was appointed by the minister.

(3) The secretary-registrar is not eligible to be a member of the complaints authorization committee.

(4) The disciplinary panel shall consist of not less than 10 registered pharmacists who are not members of the board and not less than 3 persons who are not registered pharmacists who shall be appointed by the minister to represent the public interest.

(5) Of the members first appointed to the disciplinary panel, one half shall be appointed for a term of 2 years and the remainder for a term of 3 years and all subsequent appointments of members to the disciplinary panel shall be for a term of 3 years.

(6) Notwithstanding the expiry of his or her term, a member of the disciplinary panel continues to be a member until he or she is re-appointed or his or her replacement is appointed.

(7) Persons appointed to the disciplinary panel may be reappointed.

(8) Members of the disciplinary panel shall serve as a member of the panel without payment for their services, but may be remunerated for service as a member of an adjudication tribunal and paid their travel and other expenses associated with the work of that tribunal by the board, in accordance with and at the rates set by the by-laws.

(9) The complaints authorization committee and an adjudication tribunal appointed under section 40 and a person appointed by either of them may summon witnesses and require those witnesses to give evidence, orally or in writing, upon oath or affirmation, and produce the documents and things that either of them considers necessary to the full investigation and hearing of an allegation or complaint and shall have the powers, privileges and immunities that are conferred on a commissioner appointed under the Public Inquiries Act.

Allegation

37. (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the secretary-registrar.

(2) The secretary-registrar may on his or her own motion make an allegation and file it, and the allegation shall have the same effect as an allegation referred to in subsection (1).

(3) Where the secretary-registrar has been informed that a respondent has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute of another country or has been suspended by a governing body of pharmacists in another province or territory of Canada or another territory or country for reason of professional misconduct, conduct unbecoming a pharmacist or professional incompetence, the information shall be dealt with by the secretary-registrar as an allegation.

Effect of filing allegation

38. (1) Where it appears to the secretary-registrar after notifying the respondent of the allegation that the allegation may be resolved satisfactorily and where the complainant and the respondent consent, the secretary-registrar may attempt to resolve the matter.

(2) Where the allegation is not satisfactorily resolved by the secretary-registrar under subsection (1), the secretary-registrar shall refer the allegation and all other allegations to the complaints authorization committee.

(3) The secretary-registrar shall inform a complainant and a respondent of the referral of the allegation to the complaints authorization committee.

Complaints authorization committee

39. (1) After an allegation has been submitted to the complaints authorization committee, the committee may exercise one of more of the following powers:

(a) refer the allegation back to the secretary-registrar for an investigation or alternative dispute resolution in accordance with the regulations;

(b) conduct an investigation itself or appoint a person to conduct an investigation on its behalf; and

(c) require the respondent to appear before it.

(2) Where the complaints authorization committee is of the opinion there are no reasonable grounds to believe the respondent has engaged in conduct deserving of sanction, the committee shall dismiss the allegation and give notice in writing of the dismissal to the complainant.

(3) Where the complaints authorization committee is of the opinion that there are reasonable grounds to believe that a respondent has engaged in conduct deserving of sanction, the allegation shall be considered as constituting a complaint, and the committee may

(a) counsel or caution the respondent; or

(b) instruct the secretary-registrar to file the complaint against the respondent and refer it to the disciplinary panel; and

(c) recommend to the board that

(i) the respondentís practice be suspended or restricted, or

(ii) the secretary-registrar conduct an investigation of the respondentís practice, and where the board approves an investigation the secretary-registrar shall conduct it,

at any time before a final determination by the adjudication tribunal.

(4) A person conducting an investigation under paragraph (1)(a) or (b) or subparagraph (3)(c)(ii) may require

(a) the respondent to

(i) undergo practical and other examinations he or she considers necessary and as arranged by the secretary-registrar or the board, and

(ii) permit the secretary-registrar or a member of the board or another person appointed by the board to inspect and copy the records of the respondent and other documents relating to the subject matter of the investigation; and

(b) another person to permit the secretary-registrar or a member of the board or another person appointed by the board to inspect and copy records of the respondent and other documents relating to the subject matter of the investigation held by that person,

and the respondent or other person shall comply.

(5) Where the secretary-registrar, a member of the board or another person appointed by the board requires that a respondent or other person provide information under subsection (4), that information shall be provided within 7 days of receipt of the request or a different period as specified in the request.

(6) An action for damages does not lie against a registered pharmacist or another person to whom a request is made solely because he or she provides information requested of him or her under subsection (4).

(7) Where the complaints authorization committee recommends to the board that a respondentís practice be suspended, restricted or investigated the board may

(a) decide not to act on the recommendation; or

(b) suspend, restrict or investigate the respondentís practice.

(8) A complainant whose allegation is dismissed by the complaints authorization committee under subsection (2) may within 30 days after receiving notice of the dismissal appeal the dismissal to the Trial Division by filing a notice of appeal with the Registrar of the Supreme Court.

Adjudication tribunal

40. (1) For the purpose of dealing with complaints referred to the disciplinary panel, the chairperson of the disciplinary panel shall appoint from it an adjudication tribunal consisting of 3 persons, of whom 2 shall be registered pharmacists and one shall be a member of the panel appointed to represent the public interest.

(2) The chairperson of the disciplinary panel shall appoint one of the registered pharmacists on an adjudication tribunal to be the chairperson.

Hearing

41. (1) Where a complaint has been referred under paragraph 39(3)(b), an adjudication tribunal shall hear the complaint.

(2) The rules of evidence applicable in civil proceedings are applicable at a hearing except as varied in the by-laws.

(3) The parties to a hearing are the board and the respondent and a party may be represented by his or her counsel at a hearing.

(4) A hearing shall be conducted in public but an adjudication tribunal may exclude the public from a hearing, or from part of it, where it considers the desirability of protecting a party to the complaint or another person against the consequences of possible disclosure of personal matters outweighs the desirability of holding the hearing in public.

Guilty plea by respondent

42. (1) Where a respondent pleads guilty to one or more of the charges set out in a complaint, the adjudication tribunal shall, without calling evidence or hearing witnesses, unless the tribunal believes it is appropriate to do so, hear submissions from the parties.

(2) Where a respondent pleads guilty, and following submissions under subsection (1), the adjudication tribunal may

(a) reprimand the respondent;

(b) order that the respondent be suspended for a fixed period that it considers appropriate, until conditions which it may impose are fulfilled, or until further order of the adjudication tribunal;

(c) allow or direct the respondent to surrender his or her certificate to the board upon those conditions that may be considered appropriate and strike the respondentís name from the register;

(d) impose a fine not to exceed $10,000 to be paid to the board;

(e) order that the respondent pay the costs or a part of the costs incurred by the board in the investigation and hearing of the complaint;

(f) order that the secretary-registrar publish a summary of the decision including the information set out in subsection 44(4) and other information that the tribunal may specify; and

(g) order that the respondent comply with one or more of the following:

(i) make restitution to the complainant or other person affected by the conduct of the respondent,

(ii) obtain medical treatment,

(iii) obtain counselling,

(iv) obtain substance abuse counselling or treatment,

(v) engage in continuing education programs,

(vi) report on his or her compliance with an order made under this section and authorize others involved with his or her treatment or supervision to report on it,

(vii) restrict his or her professional practice or continue his or her practice under specified conditions, or

(viii) impose other requirements that are just and reasonable in the circumstances.

Powers of adjudication tribunal

43. (1) Upon the hearing of a complaint, an adjudication tribunal shall decide whether or not a respondent is guilty of conduct deserving of sanction.

(2) Where an adjudication tribunal decides that a respondent is not guilty, it shall dismiss the complaint and may, where it believes that the submission of the complaint to the tribunal for a hearing was unreasonable,

(a) order that those costs that the tribunal considers appropriate be paid by the board to the respondent; and

(b) make another order that it considers appropriate.

(3) Where an adjudication tribunal decides that a respondent is guilty, it may

(a) reprimand the respondent;

(b) order that the respondent be suspended for a fixed period that it considers appropriate, until conditions which it may impose are fulfilled, or until further order of the adjudication tribunal;

(c) allow or direct the respondent to surrender his or her certificate to the board upon those conditions that may be considered appropriate and strike the respondentís name from the register;

(d) impose a fine not to exceed $10,000 to be paid to the board;

(e) order that the respondent pay the costs or a part of the costs incurred by the board in the investigation or hearing of the complaint;

(f) order that the secretary-registrar publish a summary of the decision including the information set out in subsection 44(4) and other information that the tribunal may specify; and

(g) order that the respondent comply with one or more of the following:

(i) make restitution to the complainant or other person affected by the conduct of the respondent,

(ii) obtain medical treatment,

(iii) obtain counselling,

(iv) obtain substance abuse counselling or treatment,

(v) engage in continuing education programs,

(vi) report on his or her compliance with an order made under this section and authorize others involved with his or her treatment or supervision to report on it,

(vii) restrict his or her professional practice or continue his or her practice under specified conditions, or

(viii) impose other requirements that are just and reasonable in the circumstances.

Filing and publication of decisions

44. (1) An adjudication tribunal shall file a decision or order made under subsection 42(2) or 43(3) with the secretary-registrar and provide a copy to the complainant and the respondent and the respondent's employer.

(2) The secretary-registrar shall maintain a copy of a decision or order filed under subsection (1) for a minimum of 5 years after the day the decision is filed and shall upon receiving a request to view the disciplinary records in relation to a registered pharmacist permit a person to view a summary of a decision where that registered pharmacist was the respondent, prepared in accordance with subsection (4).

(3) The secretary-registrar shall publish a summary of a decision or order of an adjudication tribunal in a newspaper of general circulation in or nearest to the community in which the respondent practises within 14 days of the filing of the decision or order, where the decision or order

(a) suspends the respondent;

(b) allows or directs the respondent to surrender his or her licence;

(c) restricts the respondentís practice;

(d) specifies conditions for the continuing practice of the respondent; or

(e) requires that a summary of the decision or order be published.

(4) The summary of the decision published under subsection (3) shall include

(a) the name of the respondent and the address where he or she practises;

(b) the date, location and a brief description of the conduct of the respondent that was found to be deserving of sanction;

(c) the name of the complainant, unless the complainant has requested that his or her name be withheld;

(d) the contents of the order in relation to the actions referenced in paragraphs (3)(a) to (d); and

(e) other information specified for publication in the decision or order.

(5) Where a decision published under this section is varied or set aside, the secretary-registrar shall within 14 days of the filing of the subsequent decision or order publish a summary of the decision or order and subsections (3) and (4) apply, with the necessary changes.

De-registration and suspension

45. (1) Where a respondent is struck off the register, his or her rights and privileges as a registered pharmacist cease.

(2) Where a respondent is suspended, his or her rights and privileges as a registered pharmacist cease for the period of suspension.

(3) Where conditions or restrictions have been imposed upon a respondentís ability to carry on his or her practice, his or her rights and privileges as a registered pharmacist shall be limited to the extent specified by the conditions or restrictions.

Failure to comply

46. (1) On application by the board to the disciplinary panel, an adjudication tribunal may make an order suspending the rights and privileges of a respondent where it determines that the respondent has failed to comply with a decision or an order under this Part.

(2) The parties to the application are the board and the respondent.

(3) An order of an adjudication tribunal under this section may suspend the rights and privileges of the respondent for a fixed period that the adjudication tribunal may consider appropriate, or until conditions which it may impose are fulfilled, or until further order of the adjudication tribunal.

Supplementary hearing

47. (1) Where a decision or order of the adjudication tribunal

(a) suspends the respondent;

(b) allows or directs the respondent to surrender his or her licence;

(c) restricts the respondentís practice; or

(d) specifies conditions for the continuing practice of the respondent,

and where the respondent alleges that new evidence has become available or a material change in circumstances has occurred since the making of the decision or order, the respondent may apply to the complaints authorization committee for a supplementary hearing to discharge or vary the decision or order based on the new evidence or material change in circumstances.

(2) An application under subsection (1) shall be made not more than 90 days after the new evidence becomes available or the material change in circumstances has occurred.

(3) Where an application is made to the complaints authorization committee under subsection (1), and the committee is of the opinion that new evidence has become available or that a material change in circumstances has occurred, as alleged by a respondent, the matter shall be referred to an adjudication tribunal as if it were a matter referred under paragraph 39(3)(b) and sections 41 to 45 apply, with the necessary changes, to the referred matter.

(4) The chairperson of the disciplinary panel shall, where it is possible and appropriate, appoint to the adjudication tribunal the same persons who constituted the adjudication tribunal that made the decision referred to in subsection (1).

(5) The parties to a supplementary hearing under this section are the respondent and the board.

(6) For the purpose of this section, in addition to an order that an adjudication tribunal may make under section 43, a tribunal may

(a) vary the original decision or order made under section 43; or

(b) discharge the original decision or order, with or without conditions.

Costs of the board

48. (1) Where a person who was ordered to pay the costs of the board under paragraph 42(2)(e) or 43(3)(e) fails to pay in the time required, the board may suspend the registration of that person until the costs are paid.

(2) Costs ordered to be paid under paragraph 42(2)(e) or 43(3)(e) are a debt due the board and may be recovered by the board by a civil action.

Collection of fine

49. (1) Where an order is made under section 42 or 43 imposing a fine on a respondent, the board may issue a certificate stating the amount of the fine due and remaining unpaid and the name of the person by whom it is payable, and file the certificate with the Registrar of the Supreme Court.

(2) Where a certificate is filed with the Registrar of the Supreme Court under subsection (1), it has the same effect and all proceedings may be taken on the certificate as if it were a judgment of the Trial Division for the recovery of the amount stated in the certificate against the person named in the certificate.

(3) A person named in a certificate filed under this section may, within 30 days after the certificate is filed, apply to a judge of the Trial Division for a review, on a question of law or jurisdiction, of the certificate.

(4) On an application under subsection (3), the judge may make any amendment to the certificate that is necessary to make the certificate accord with the judgeís decision.

(5) There is no appeal from a decision of a judge made under this section.

(6) A certificate filed under this section may also be filed in the judgment enforcement registry on the expiration of the 30 day period referred to in subsection (3) in accordance with Part III of the Judgment Enforcement Act and be enforced in accordance with that Act.

Appeal to Trial Division

50. (1) The board or the respondent may, within 30 days after receiving notice of a decision or order of an adjudication tribunal under this Act, appeal the decision or order to the Trial Division by filing a notice of appeal with the Registrar of the Supreme Court.

(2) An appeal under this section does not stay the decision or order being appealed unless the Trial Division orders otherwise.

 

31. Section 59 of the Act is amended by striking out the words "dispensing fee" wherever they occur and substituting the words "professional fee".

 

32. Section 60 of the Act is amended by striking out the words "dispensing fee" and substituting the words "professional fee".

 

33. Subsection 64(2) of the Act is amended by inserting immediately after the word "Newfoundland" the words "and Labrador".

 

34. Section 65 of the Act is repealed and the following substituted:

Contravention

65. A pharmacist who contravenes the provisions of this Part is considered to have committed professional misconduct for the purposes of Part IV.

 

35. Section 68 of the Act is repealed.

Transitional

36. (1) The members of the Newfoundland Pharmaceutical Association are continued as members of the Newfoundland and Labrador Pharmacy Board until an election is held for the members in accordance with section 5 of the Act.

(2) An election to elect the 7 members referred to in paragraph 5(2)(a) shall be held within 3 months after the day this Act comes into force.

(3) Of the members first elected under subsection (2),

(a) 3 shall be appointed for a term of 3 years;

(b) 2 shall be appointed for a term of 2 years; and

(c) 2 shall be appointed for a term of one year.

(4) Notwithstanding subsection (1), the persons appointed to the Council of Newfoundland Pharmaceutical Association by the minister under subsection 11(1) of the Act are continued as members of the board until their term of office expires or a replacement is appointed under this Act.

(5) The by-laws of the Newfoundland Pharmaceutical Association in operation at the coming into force of this Act shall, to the extent that they are not inconsistent with this Act or the Corporations Act, be the by-laws governing the Newfoundland and Labrador Pharmacy Board until revoked or amended.

 

 

 

 

 

 

©Earl G. Tucker, Queen's Printer