On The Docket

David B. Brushwood, BSPharm, JD

It is important that the pharmacy profession protect the public from pharmacists whose impairment may threaten the public health. Boards of pharmacy have the authority to remove impaired pharmacists from active practice through license restrictions. The profession recognizes that recovery is a possibility for many pharmacists who suffer from an impairment. Programs have been adopted to reintroduce a recovering pharmacist into active practice, based on evidence that the pharmacist is not a threat to the public.

Background

A pharmacist was arrested for driving under the influence of alcohol. The pharmacist voluntarily enrolled in an impaired practitioner program. Pursuant to a consent order (CO), the pharmacist was monitored by a government bureau that provided oversight on behalf of the board of pharmacy. The CO suspended the pharmacist’s license for 3 years and stayed the suspension in favor of 3 years of probation. During the probation, the pharmacist agreed to abstain from alcohol and undergo mental health evaluation as well as drug treatment and random drug testing.

The pharmacist petitioned the board for early release from continued monitoring and for full reinstatement of his license, stating he was “working at a lower-paying pharmacy job because of his probation.” He justified his request with evidence that he posed no threat to the health or safety of the public. He testified that he had paid thousands of dollars in costs related to his rehabilitation, had attended 800 recovery meetings, and had passed 140 random drug tests.

The supervisor of the voluntary impaired practitioner program testified that the pharmacist had “demonstrated rehabilitation,” was “an asset to the pharmacy profession,” and that the likelihood of a future violation was minimal.

The government bureau advised the board that it did not support early termination of probation for this pharmacist or for any pharmacist. The board denied the pharmacist’s petition based on the bureau’s opposition, as well as the pharmacist’s failure to use the correct petition form, and an understanding by the board that the CO mandated 3 years of probation. From this denial, the pharmacist appealed.

Rationale

The court first noted the government bureau’s “rigid policy to oppose all requests for early termination of probation in order to reduce its workload.” The court found a “lack of good faith and fair dealing” in such a policy. The court then ruled that the board of pharmacy, in relying on the government bureau, had delegated its independent responsibility over pharmacist licensing, contrary to authority granted to the board under state law. In fact, the CO did not mandate 3 years of probation. A provision in the CO stipulated that the board could reduce the term of the probation.

The court then explained that the pharmacist had not used a specific petition form because the government bureau refused to provide the form. The court ruled that the CO contained no requirement for the use of any specific form for a request to modify the period of probation.

Last, the court considered whether the board had “capriciously disregarded [the pharmacist’s] evidence of sobriety, program compliance, and rehabilitation.” The court concluded that the board had erred in relying on the government bureau’s “inflexible policy.” In addition, the board mischaracterized the testimony provided by the voluntary program’s director. The board said that the director had not made any recommendation when in fact she had recommended reinstatement.

The court ruled that the board had “capriciously disregarded [the pharmacist’s] evidence of rehabilitation, program compliance, and his exemplary employment record.”

The board of pharmacy’s decision was vacated.

Discussion

Boards of pharmacy must take care to protect the public from impaired pharmacists. They must also protect the right of pharmacists who are in recovery and can demonstrate that they pose no threat to the public. The decision to modify restrictions on a pharmacist’s license must be made independently by the board of pharmacy, based on evidence presented to the board.