HK v General Pharmaceutical Council [2014] CSIH 61

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Extra Division, Inner House, Court of Session
Lord Eassie, Lord Drummond Young and Lord Wheatley
10 July 2014

The appellant was a registered pharmacist. On 27 June 2013 the Fitness to Practise Committee of the General Pharmaceutical Council made a finding that his fitness to practise as a pharmacist was impaired, and directed that his name should be removed from the Register of Pharmacists in accordance with art 54(2)(c) of the Pharmacy Order 2010, SI 2010/231. The appellant appealed against that decision by means of a statutory appeal under art 58(1)(a) of the 2010 order. He did so on two grounds. He contended that the decision to remove his name from the register was manifestly wrong, and that the sanction was one that no reasonable committee should have imposed in the circumstances of the case. The General Pharmaceutical Council alleged that the appellant's fitness to practise as a pharmacist was impaired by reason of misconduct and by reason of a conviction. The charges against him arose out of convictions at Glasgow Sheriff Court for assault to injury, behaving in a threatening or abusive manner and wilful or reckless damage to property. The offences were all of a domestic nature.

The first offence, committed on 20 July 2010, occurred when the appellant was living with his wife in their matrimonial home. During an argument he kicked her when she was lying in bed, grabbed her by the hair and repeatedly punched her face. He then dragged her off the bed and struck her again on the face, with the intention of causing her injury. He initially pled not guilty, but subsequently changed his plea. On 13 May 2011 he was fined £400 and ordered to pay compensation of £500. The second conviction related to offences committed on 9 and 30 March 2012, by which time the appellant's marriage had been dissolved. On 9 March 2012 the appellant went to his wife's home and demanded entry, repeatedly banged on a door and shouted and swore in such a way as to put her in a state of fear and distress. On 30 March he went to his wife's home, the former matrimonial home, with one of his relations when his wife was not present. They tricked their way in, shouted, swore and threatened violence. The appellant kicked a hole in a wall and then left, taking with him his two children, aged two and nine, who had been in the house with his wife's mother and sister. The police took the children back from the appellant's home. He pled guilty to those offences, and was sentenced to a community payback order involving 18 months' supervision and 180 hours of unpaid work. The complaint against the appellant further alleged that his fitness to practise was impaired by misconduct consisting of a failure to report the first conviction to the respondents' Registrar within seven days, as required by r 4 of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc Rules) Order of Council 2010. The appellant gave evidence to the Fitness to Practise Committee. He conceded that his fitness to practise must be impaired because of the impact of his conduct on public confidence in the profession. He admitted his conduct and apologised for it. He said that he committed the offences at a time when his marriage was breaking up and referred to a course he had completed as a condition of his community payback order. He said that he had subsequently been able to negotiate amicably with his former wife, using the cognitive behavioural therapy techniques he had learned at the course.

In deciding whether fitness to practise had been impaired, the Fitness to Practise Committee was required to have regard to the criteria set out in r 5(2) of the 2010 Rules. The Committee determined that the appellant's fitness to practise was currently impaired by reason of his convictions; either of the convictions would have been sufficient for such a conclusion. By way of sanction the respondents sought either the appellant's suspension from the Register of Pharmacists or his removal from the Register. They submitted that public confidence in the profession demanded no lesser sanction. The Committee determined that the appellant should be removed from the Register. They indicated that the purpose of a sanction in such a case was not to punish the registrant but to protect the public as patients, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct. The Committee accepted that there was no evidence of any continuing risk to patients, but they determined that it was not sufficient to issue a warning to the appellant in order to maintain public confidence in the profession and proper standards of behaviour among pharmacists. Criminal convictions for domestic violence were wholly unacceptable for a pharmacist, and must be visited with serious consequences. The Committee further considered that there were no conditions that could be devised to address the misbehaviour; it did not involve clinical failings that could be rectified by training. The Committee considered whether a period of suspension would be appropriate and sufficient to restore or maintain public confidence in the profession. The limit of the Committee's power of suspension was a period of 12 months. They considered that suspension for that period would be insufficient to mark the degree of seriousness of the appellant's conduct. His conduct was fundamentally incompatible with continued registration as a pharmacist. Thus he must be removed from the Register. He would not be able to apply for restoration to the Register for five years. The Committee acknowledged that that might mean that he had to leave the profession permanently. They stated: 'An order of removal may appear harsh. However, the public interest outweighs [the appellant's] personal interest, and a harsh order may, in part, be a consequence of the limited choice of sanction available to the Committee . . .'

The court ruled:

  1. The appellant's appeal against the Fitness to Practise Committee's determination was limited to the question of the sanction imposed; he accepted that his fitness to practise was impaired by his criminal convictions. The first ground of appeal argued related to the procedure before the Committee. It was said that after deciding that the appellant's fitness to practise was impaired the Committee should not have proceeded at once to determine sanction, and should have adjourned to allow the appellant to take legal advice. The Committee should have realised that he was 'wholly out of his depth' in dealing with sanction; he had taken advice from a solicitor before the hearing and had understood that he could expect merely to receive a warning, as his misconduct did not impinge directly on his practice. It appeared, however, that no motion was made to adjourn, and the Committee raised the question of legal representation. The court rejected this ground of appeal; the appellant did not request representation, and in any event, for the reasons discussed below, the Committee's decision on sanction could not stand and must be reconsidered. Consequently the appellant would suffer no prejudice.
  2. The remaining grounds of appeal related to the Fitness to Practise Committee's decision to remove the appellant from the Register rather than to impose some form of lesser sanction. The sanctions available to Committee were set out in art 54 of the 2010 Order. The primary sanctions available were set out in para (2). A period of suspension imposed under art 54(2)(d) was initially restricted to 12 months, but that period could subsequently be extended by further periods of 12 months in terms of art 54(3)(a)(ii). The Fitness to Practise Committee failed to have proper regard to that feature of the sanction of suspension. The Committee considered the sanctions available under art 54(2) in succession. First, it considered a warning, but concluded that that was not sufficient; the maintenance of public confidence in the profession and the maintenance of standards required to signal to the profession and the public that criminal convictions for domestic violence were wholly unacceptable for a pharmacist and would be visited with serious consequences. That finding was not challenged. Secondly, the Committee considered the imposition of conditions, but concluded that no conditions could be devised that were sufficient and appropriate to address the misbehaviour. The case was not one involving clinical failings which could be rectified by training. In the court's opinion the imposition of conditions was a sanction designed primarily to address professional failings. While there might be cases where other forms of misconduct could be so addressed, the court could not conclude that the Committee was plainly wrong in deciding that this was not such a case. Thirdly, the Committee considered whether a period of suspension would be appropriate and sufficient to restore or maintain public confidence in the profession. It noted that repeated domestic violence struck at the core of professional health care; pharmacists were expected to be understanding, sympathetic to all patients and publicly and privately trustworthy. Suspension for 12 months, the limit imposed on a period of suspension by art 54(2)(a), was considered an insufficient sanction to mark the gravity of the appellant's behaviour. No reference was made to the further power in art 54(3)(a)(ii) to extend a period of suspension for a further period of up to 12 months. The Committee appeared to have regarded the choice facing them as between suspension for 12 months, which they considered inadequate, and removal from the Register, which they acknowledged might appear harsh. That was a false dichotomy, however; a middle way was open, in the form of suspension for 12 months with an extension thereafter for a further 12 months, and possibly a further suspension for 12 months beyond that. Such suspension would be a significantly lesser sanction than removal from the Register, which prohibited any application for re-registration for a period of 5 years. It would be competent for the Committee, when imposing the sanction of 12 months' suspension, to indicate that it considered that the suspension should be extended thereafter, for a further 12 months or longer as the case might be. The power to give such an indication was reasonably incidental to the powers conferred by art 54(2)(d) and (3)(a)(ii); without it the Committee was faced with a stark dichotomy between one year's suspension and removal from the Register, which was effective for at least 5 years. That was clearly undesirable as in many cases, of which this was an example, some middle course was the correct sanction.

The problem with the decision of the Committee that heard the complaint against the appellant was that on the face of the decision there was no consideration of the possibility of a renewal of suspension after 12 months. Consequently it seemed likely that the Committee did not consider the possibility of suspension for 12 months with an indication that that should be extended for a longer period. On that basis the Committee's decision as to sanction was flawed, and the court would accordingly quash the part of the decision that related to sanction and remit the appellant's case to the Fitness to Practise Committee for reconsideration. The court would further direct that in reconsidering sanction the Committee should have regard to the matters discussed above, and to the following factors. First, the appellant had made serious efforts to rehabilitate himself. Secondly, the Committee expressly stated that they were convinced by his evidence that he had genuinely learned the error of his past behaviour and had acquired good skills as a result of cognitive behavioural therapy. They also noted that it would be unfortunate if he were to leave the profession permanently, because there was no evidence that he was not a good pharmacist. Those were considerations that were clearly important in deciding what would be an appropriate sanction. However, the court was not directing that the sanction should necessarily involve suspension for a period beyond one year; that was a matter for the Committee to decide.

Reproduced with kind permission of LexisLibrary.