A Yukon Supreme Court judge has overturned a pharmacy board of inquiry’s finding of professional misconduct against a Whitehorse pharmacist after identifying a laundry list of errors in the process.
Pharmacist Gennadi Gouniavyi was not treated fairly throughout a case triggered by a complaint from a former colleague that eventually led to Gouniavyi’s licence being suspended, deputy Justice Beverley Browne found in her Aug. 9 decision.
Among other things, Gouniavyi was not provided with the names of the people on the board charged with investigating the complaint, or even specific details of the complaint against him.
The case began in 2016, when one of Gouniavyi’s former colleagues at the Walmart pharmacy filed a complaint against him alleging “medication errors, breach of patient confidentiality, violation of protocols in dispensing narcotics, and efforts to conceal or destroy relevant information,” according to the decision.
The complainant later provided a list of 63 alleged incidents and 12 examples as well as a list of witnesses. A pharmacy board of inquiry consisting of two other pharmacists was put together to investigate the complaint.
The investigation, which Browne describes as a “100% paper process,” consisted of taking materials from the complainant and asking Gouniavyi to provide records or respond to general allegations against him, such as “multiple errors and problems,” “countless complaints, egregious errors with blister packs” and “complaints over the years.”
Gouniavyi, in one reply, admitted to having made 14 mistakes or errors between 2012 and 2016 based on the general allegations he was provided.
The board made a finding of professional misconduct and recommendations for punishment, including a four-week licence suspension against Gouniavyi in April 2017. It sent its decision to the Department of Community Service’s Professional Licensing & Regulatory Affairs in July of that year but did not tell Gouniavyi about it, despite being required to do so under the Pharmacists Act.
On Aug. 9, 2017, the registrar of pharmacists contacted Gouniavyi stating it had accepted the board’s findings and recommendations for punishment.
Gouniavyi filed a petition to the Yukon Supreme Court that September seeking judicial review of both decisions.
In her decision, Browne wrote that Gouniavyi was “entitled to a high standard of procedural fairness” as the decision would clearly have an impact on his ability to work and his reputation, but “had not been treated fairly.”
In particular, Browne took issue with the fact that the board had not given Gouniavyi sufficient information about the case against him, describing the general allegations he was provided as “seriously deficient.”
“He was forced to guess what the complaints were in order to respond to them. In other words, his evidence was used against him because he did not know the case against him, and neither did the Board, until they received Mr. Gouniavyi’s response … A breach of the duty to be fair renders the decision invalid,” Browne wrote, quashing the board’s decision based on that point alone.
However, although unnecessary, she also went on to address several other factors, finding it unfair that Gouniavyi had not been told who was on the board, and therefore couldn’t object to its composition on the basis of bias, if any existed; was not given an oral hearing, despite the seriousness of the case; and was not given any chance to make submissions at the penalty phase.
Browne also found the board had given insufficient reasons for its decision, deciding certain parts of Gouniavyi’s evidence was truthful or unreliable without explaining why; had handed out punishments, including requiring Gouniavyi to write a letter of reflection, not provided for under the Pharmacists Act; and had ignored the act’s one-year limitation for complaints.
Browne ordered the case to be reheard by a new panel.
Contact Jackie Hong at firstname.lastname@example.org